                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1794
                              Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERALD DAVID FROST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Russell G. Keast

(motion to suppress), Nicholas L. Scott (stipulated trial), and Casey D. Jones

(sentencing), District Associate Judges.



      A defendant appeals his conviction for possession of methamphetamine.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.

       Jerald Frost appeals his conviction for possession of methamphetamine,

claiming police violated his constitutional protection against unreasonable search

and seizure by finding contraband inside a closed container taken from Frost’s

pocket during a warrantless search. Because police exceeded the scope of Frost’s

consent, we reverse the suppression ruling and remand for further proceedings.

   I. Facts and Prior Proceedings

       Around 2 a.m., Jennifer Roberts, a sergeant with the Cedar Rapids Police

Department, overheard dispatch refer to a “suspicious vehicle”—the occupants of

a white van entered a residence where police had been frequently called to deal

with “stolen vehicles, narcotics and wanted persons.” According to dispatch, the

suspects “carried a bunch of stuff out, apparently getting back into the van.” A

patrol unit tracked the van for several blocks, trying to establish probable cause to

investigate, but found no valid reason for a traffic stop.

       Sergeant Roberts saw the van turn into a Walgreens parking lot and

decided to follow. The van parked in a designated space. Roberts, who was in

uniform and driving a marked squad car, pulled in behind and slightly to the side

of the van so as to not block it in. As Roberts left her vehicle, two other police cars,

including an unmarked sedan driven by Officer Christopher Brand, converged on

the Walgreens lot. A total of three police vehicles and five police officers joined

the investigation. None of the police vehicles activated emergency lights or sirens.

       Roberts approached the driver, who had stepped out of the van, and asked

if she could speak with him. Roberts did not direct any questions to the van’s two

passengers. The driver agreed to speak to the officer and identified himself as
                                         3


Jerald Frost. Roberts asked to see his driver’s license to verify his identity. As

Roberts returned Frost’s license, Officer Brand walked up. Both Roberts and

Brand carried firearms and tasers but did not draw them. Roberts told Frost she

had received a report of the van’s occupants removing items from a residence

associated with methamphetamine use and one of the van’s passengers was a

known methamphetamine user. Roberts then asked Frost “if he had anything

illegal on him.” Frost denied possessing anything illegal.

      Roberts thanked Frost for speaking with the officers, told him he was free

to go, but then asked if Officer Brand could “pat him down”. Frost raised his arms

in response. Brand also asked permission before beginning the patdown. Frost

verbally consented to Brand’s request.       During the patdown, Brand felt and

removed two aluminum cylinders with screw lids from Frost’s front pants pocket.

Brand opened both cylinders without seeking Frost’s permission. One cylinder

contained methamphetamine.

      The State charged Frost with possession of methamphetamine, in violation

of Iowa Code section 124.401(5) (2017). Frost filed a motion to suppress evidence

seized during the warrantless search.        The motion cited both the Fourth

Amendment of the United States Constitution and article I, section 8 of the Iowa

Constitution. The district court held a suppression hearing where the State called

Roberts and Brand as the only witnesses.        The court denied the motion to

suppress, concluding Frost was not seized, consented to the search, and by

raising his hands, indicated he knew the extent of the search request. Frost waived

his right to a jury trial and proceeded to a trial on the minutes of evidence. The

district court found Frost guilty beyond a reasonable doubt. Frost now appeals.
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    II. Standard of Review

       We review issues involving constitutional claims de novo. State v. Pals, 805

N.W.2d 767, 771 (Iowa 2011). When reviewing the reasonableness of a search,

we look to the entire record in light of the unique circumstances of each case. Id.

We defer to the district court’s fact findings but we are not bound by those findings.

State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

       Both the Fourth Amendment and article I, section 8 of the Iowa constitution

protect citizens from unreasonable search and seizure. State v. Ingram, 914

N.W.2d 794, 799 (Iowa 2018) (highlighting “the potential for an independent state

court interpretation under the state constitution that is more protective of individual

rights”). When a defendant raises both federal and state constitutional claims, we

may choose to consider either claim first, or both claims simultaneously. State v.

Ochoa, 792 N.W.2d 260, 267 (Iowa 2010).

    III. Discussion

       On appeal, Frost presents two separate suppression claims based on state

and federal constitutional provisions. First, Frost contends he was impermissibly

seized by officers in the Walgreens parking lot. Second, Frost challenges the proof

of his voluntary consent to the patdown and the scope of the search.1




1
  In challenging his consent to the patdown, Frost asserts article I section 8 of the Iowa
Constitution should be interpreted to require law enforcement to inform citizens of the right
to refuse to consent to a warrantless search wherein no exigencies are present. See Pals,
805 N.W.2d at 779–80. Because we reverse the district court’s suppression ruling on
other grounds, we need not address this issue. See State v. Leaton, 836 N.W.2d 673, 677
(Iowa Ct. App. 2013).
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   A. Seizure

       “Whether a ‘seizure’ occurred is determined by the totality of the

circumstances.”      State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008) (citation

omitted).      “Law enforcement officers do not violate the Fourth Amendment’s

prohibition of 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. Prusha, 874 N.W.2d 627, 630 (Iowa 2016) (citation omitted). An

individual’s conversation with police officers remains consensual absent law

enforcement’s use of physical force or other show of authority. State v. Smith, 683

N.W.2d 542, 547 (Iowa 2004).        When deciding if a voluntary encounter has

transformed into a seizure, we look for objective indications of an officer’s coercion

or dominion over a person. Id.; see State v. White, 887 N.W.2d 172, 176–77 (Iowa

2016) (suggesting objective indicators of a seizure may include use of flashing

emergency lights, an officer’s restriction of an individual’s ability to leave an

encounter, and an officer’s volume and tone of speech when addressing an

individual).

        An encounter with police turns into a seizure when circumstances are

sufficiently intimidating such that a reasonable person would believe they are not

free to leave without responding. State v. Reinders, 690 N.W.2d 78, 82 (Iowa

2004) (citation omitted). Although three police vehicles and five officers entered

the Walgreens lot, none of the vehicles used emergency lights. See White, 887

N.W.2d at 176. The police vehicles were scattered around the lot, not surrounding

Frost’s van. See id. at 176–77. Neither the officers nor their vehicles physically

blocked Frost from entering the Walgreens store or driving out of the parking lot if
                                           6

he wished to leave. Id. at 177. A passenger in the van also exited the vehicle and

entered Walgreens during Frost’s conversation with Roberts without stopping for

police or answering questions.

       Only two police officers approached Frost. Sergeant Roberts asked Frost

if she could talk with him. Throughout the conversation, Roberts never raised her

voice, drew a weapon, or exhibited behavior objectively indicating an attempt to

gain dominion over Frost. See Smith, 683 N.W.2d at 547. Because a reasonable

person would have felt free to leave Frost’s encounter with police, his choice to

participate in the questioning was voluntary and he was not seized for the purposes

of either federal or state constitutional provisions.

   B. Consent Search

          1. Permission for Patdown

       A warrantless search is unconstitutional unless a recognized exception

applies. Reinders, 690 N.W.2d at 83. Free and voluntary consent is one exception

to the warrant requirement. State v. Reinier, 628 N.W.2d 460, 464–65 (Iowa

2001). “Consent given to a search must be unequivocal, specific, and freely and

intelligently given.” State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993) (citations

omitted). Consent is voluntary when provided free of duress and express or

implied coercion. Reinier, 628 N.W.2d at 465. The State has the burden of

establishing consent was voluntary by a preponderance of the evidence.          Id.

Voluntary consent is a question of fact determined by an examination of all the

relevant surrounding circumstances. Prusha, 874 N.W.2d at 630. An individual’s

knowledge of the right to refuse consent to a warrantless search is one factor in

determining voluntariness. Id. Other potential factors include the nature of police
                                         7


questions, the vulnerability of the individual giving consent, and the number of

officers seeking consent. State v. Pettijohn, 899 N.W.2d 1, 32 (Iowa 2017).

      “Consent may be express or implied.” State v. McConnelee, 690 N.W.2d

27, 30 (Iowa 2004). Consent may be granted through words, gestures, or non-

verbal conduct. Reinier, 628 N.W.2d at 467. The State must show an individual’s

consent to a search beyond general cooperation with law enforcement. State v.

Lathum, 380 N.W.2d 743, 745 (Iowa Ct. App. 1985).

      Frost first disputes the State’s proof of his voluntary consent to the patdown

performed by Officer Brand. Frost argues the raising of his arms was mere

acquiescence to the officer’s demand and an insufficient showing of voluntary

consent. See State v. Leaton, 836 N.W.2d 673, 678 (Iowa Ct. App. 2013).

      Roberts testified she initially asked Frost if Officer Brand could pat him down

and Frost raised his arms. Roberts further testified Brand also asked Frost for

permission to pat him down and Frost replied, “Yes, that would be fine.” Brand

opined during the suppression hearing that an individual who puts his hands in the

air “usually signifies consent.” Brand testified he asked Frost if he “could check

his body for anything illegal” before beginning the pat-down and Frost “consented.”

In overruling the suppression motion, the district court stated, “[Frost], by his

actions of raising his arms, indicated a knowledge of the request and the extent of

the request.”

      Frost’s raising of his arms, without more, is insufficient to show an

“unequivocal, specific” consent to the patdown. See id. But, Frost’s raising of his

arms while also verbally agreeing to Brand’s request to perform a patdown
                                           8

qualified as consent to the limited search. Howard, 509 N.W.2d at 767; accord

Leaton, 836 N.W.2d at 677.

           2. Scope of the Search

       Alternatively, Frost argues if he voluntarily consented to a patdown, the

scope of his consent did not extend to a search of the inside of his pants pocket or

the opening of the containers.

       “In conducting any consent search, [law enforcement] are limited by the

terms of the consent.” State v. Myer, 441 N.W.2d 762, 765 (Iowa 1989). “The

scope of the search must be ‘strictly tied to and justified by’ the circumstances

which rendered its initiation possible.” Pals, 805 N.W.2d at 775 (quoting Terry v.

Ohio, 392 U.S. 1, 19 (1968)). The scope of consent is limited “by what a typical

reasonable person [would] have understood by the exchange between the officer

and the suspect.” McConnelee, 690 N.W.2d at 30 (alteration in original) (citations

omitted). Once the suspect gives specific consent, the officer cannot expand a

search into other areas unless another exception to the warrant requirement

applies. Id. at 32.

       Brand and Roberts both testified to requesting permission to perform a

“patdown” of Frost.2 A patdown or frisk is “a careful exploration of the outer

surfaces of a person’s clothing all over his or her body . . . .” Terry, 392 U.S. at 16.



2
  The dissent contends Officer Brand asked Frost for consent to perform an expanded
search for “anything illegal” on “his person.” The suppression record does not support
that interpretation. On cross examination, defense counsel engaged in the following
exchange with Officer Brand.
        Q.      You didn’t explain to Mr. Frost that difference between a pat-down and a
full search? A No, I did not.
        Q. You didn’t tell him that what you were asking was more than just a simple pat-
down? A. No, I did not.
                                          9


A patdown is “characterized as something less than a ‘full’ search” despite being

constitutionally intrusive. Id. at 26. A reasonable person would have understood

the request from Brand and Roberts as being limited to patting the outer surface

of Frost’s clothes. Any continued exploration, for example reaching into Frost’s

pants pocket, without triggering an additional exception to the warrant requirement,

exceeded the scope of his consent and was per se unreasonable. See State v.

Scott, 518 N.W.2d 347, 349–50 (Iowa 1994). As the label suggests, a patdown is

not a “reach-in search.” See Wright v. City of Milwaukee, No. 13-C-1028, 2015

WL 1728072, at *3 (E.D. Wis. April 15, 2015) (citing Sibron v. New York, 392 U.S.

40, 65 (1968) (officer may not reach into suspect’s pocket in search of narcotics

without first conducting patdown of outer clothing to locate weapons)).

       Officer Brand testified he felt two aluminum cylindrical containers in Frost’s

pants pocket during the patdown. Brand acknowledged he had to remove the

containers and their lids to locate the drugs. The State argues when Officer Brand

found the aluminum containers, he was permitted to remove them from Frost’s

pocket and open the lids to complete his search for “anything illegal.” Because

Frost gave permission only to be “patted down” and not fully searched, Officer

Brand’s act of reaching into Frost’s pocket ventured beyond the scope of consent.

       Neither was the search of Frost’s pocket justified by another exception to

the warrant requirement, such as the plain-feel doctrine. “If a police officer lawfully

pats down a suspect's outer clothing and feels an object whose contour or mass

makes its identity immediately apparent . . . its warrantless seizure would be

justified.” Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993); accord Scott,

518 N.W.2d at 349–50; State v. Harriman, 737 N.W.2d 318, 319–20 (Iowa Ct. App.
                                           10


2007).     But when the incriminating character of an object is not immediately

apparent to an officer, any further manipulation of the object is not authorized

under the plain feel exception. Dickerson, 508 U.S. at 379. Without evidence of

immediate recognition by Officer Brand that the items held contraband, taking the

containers from Frost’s pocket and opening them was an unreasonable intrusion.

         The State has the burden of showing by a preponderance of the evidence

that Frost consented to the expanded search. See Pettijohn, 899 N.W.2d at 14.

Frost consented only to a patdown. Officer Brand testified he did not ask Frost

about the cylinders before removing them from his pocket nor did he ask

permission to open them before unscrewing the lids. See Scott, 518 N.W.2d at

350. Absent knowing and voluntary consent from Frost or any other recognized

exception to the warrant requirement, Officer Brand’s seizure and search of the

closed containers was impermissible under state and federal constitutional

provisions. See Ingram, 914 N.W.2d at 820.

   IV. Conclusion and Disposition

         The officers did not seize Frost and did obtain his voluntary consent to a

patdown. But the subsequent search of Frost’s pocket and the opening of the

containers inside exceeded the scope of his consent. Consequently, the district

court should have suppressed the evidence obtained in the officer’s search of the

pocket. We reverse the judgment of conviction and remand for a new trial in which

the evidence obtained from the pocket is excluded.

         REVERSED AND REMANDED.

         Danilson, C.J., concurs; Vogel, J., partially dissents.
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VOGEL, Judge (concurring in part and dissenting in part).

      I concur with the majority that no seizure occurred but I dissent in part

because I believe the record reveals that Frost consented to the search of his

person. Officer Brand testified about the events leading up to the search:

               Q. [A]t a certain point after the defendant was identified, did
      Sergeant Roberts ask if you could pat him down? A. Yes. Umm,
      she had obtained his—I believe it was an Iowa driver’s license.
      Umm, she handed that driver’s license back to him. I believe she
      told him he was free to go, umm, but asked for his consent, umm,
      prior if I could pat him down for anything illegal.
               Q. And what happened—what was the defendant’s response?
      A. He put his hands up in the air. Umm, normally, umm, with, umm,
      my experience, this is someone consenting to—to a search or a pat-
      down. Umm, I wanted to clarify.
               Q. So what did you do? A. I asked him if I could check him
      for anything illegal. Umm, he had previously said to Sergeant
      Roberts he had nothing illegal on his person.
               Q. Okay. So you asked if you could check his body for
      anything illegal? A. Correct.
               Q. And what was his response? A. He consented to—to that.

      Officer Brand further elaborated on cross-examination:

              Q. [W]hat Sergeant Roberts asked Mr. Frost was if it was okay
      if you patted him down; correct? A. Correct.
              Q. And he just held up his hands? A. Correct.
              Q. And you said you asked a clarifying question; correct? A.
      Yes.
              Q. And you asked if it would be okay if you checked his person
      for anything illegal? A. Correct.
              ...
              Q. So when you asked Mr. Frost if you could search his
      person after he had been asked if you could pat him down, he said
      yes? A. Yes.

      While Sergeant Roberts initially only requested consent for a pat-down

search, Officer Brand quickly clarified that he sought consent for an expanded

search of “anything illegal” on “his body” or “his person.”       Based upon this

testimony, a reasonable person would have understood that Officer Brand asked
                                          12


for consent to go beyond a pat-down search. His search into Frost’s pockets and

the containers found therein was within the consent given for “anything illegal.”

Therefore, I would affirm the district court.
