                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1495
                            Filed November 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BENJAMIN WADE WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Kirk A. Daily,

District Associate Judge.



      Benjamin Williams appeals from his conviction and sentence for

possession of a firearm as a felon and carrying weapons. REVERSED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



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

       Benjamin Williams appeals his convictions for possession of a firearm as a

felon and carrying weapons. He asserts the district court erred in denying his

motion to suppress and that trial counsel was ineffective for failing to argue that

an investigatory stop, premised on an already-completed misdemeanor, is

unconstitutional.   We conclude the district court erred when it admitted the

evidence because Williams was seized before the officer had reasonable

suspicion to do so, resulting in a Fourth Amendment violation. Based on this

conclusion, we need not address Williams’s ineffective-assistance claim.

Therefore, we reverse his convictions and remand.

I. Factual and Procedural Background

       On June 5, 2013, Williams was arrested. The district court made the

following findings of fact:

               On June 5, 2013 Officer Noah Aljets was on duty at
       approximately 12:46 a.m. and traveling east on Main St. in
       Ottumwa, Iowa. After he had just gone through the intersection of
       Main and Jefferson streets a van passed him and turned into a lot
       next to the laundromat. Although the laundromat was open and
       had lighted parking in front of it, the van pulled into a lot on the west
       side of the building, in the back of the lot, where it was unlit.
               The person in the van exited it and began walking rapidly on
       Main St. to the west. Based on his experience and training AIjets
       believes unlicensed drivers try to avoid law enforcement and often
       pull off the road quickly when they encounter an officer.
               In order to check out the driver’s status, Aljets hit his siren,
       the driver came over to the squad car, and they conversed. The
       driver said he was going to a bar, but Aljets knew they were closed.
       He asked the driver if he had his ID, the driver responded he did,
       but then [he] said he didn’t.
               Aljets then asked the driver for his name and date of birth;
       however, the driver said he wasn’t sure whether his name on his ID
       was Ben or Benjamin. This also raised the officer’s suspicions.
       The driver told the officer his driver’s license was probably
       suspended. The officer believed he had probable cause to believe
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       the defendant was suspended, cuffed him, and after confirming his
       driving privileges were suspended, arrested the defendant.
              While searching the defendant incident to this arrest, Aljets
       found a 9mm pistol in a holster in the defendant’s rear pocket,
       which ultimately led to the within weapons charges being filed
       against defendant.

       Williams was charged with possession of a firearm by a felon and carrying

weapons. On October 24, 2013, Williams filed a motion to suppress, arguing the

search and seizure was a violation of the Fourth Amendment. The district court

denied the motion, and the case proceeded to a bench trial. On April 18, 2014,

Williams was found guilty of the charges of possession of a firearm as a felon, in

violation of Iowa Code section 724.26 (2013), and carrying weapons, in violation

of Iowa Code sections 724.1 and 724.4(1). Williams appeals.

II. Standard of Review

       We review constitutional issues, including ineffective-assistance claims,

de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002). We give weight to

the district court’s findings of fact but are not bound by them. Id.

III. Seizure

       Williams first asserts the district court erred when it denied his motion to

suppress evidence, that is, the pistol found in his possession as well as his

incriminating statements.    He argues Officer Aljets stopped Williams without

reasonable suspicion, then seized him when he used his siren to catch Williams’s

attention and gave him repeated orders to stand in front of the patrol car. Thus,

he claims a Fourth Amendment violation occurred, and the evidence should have

been suppressed.
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       When an officer, by means of physical force or a show of authority,

restrains the liberty of a citizen, a seizure occurs. Terry v. Ohio, 392 U.S. 1, 20

(1968). Factors indicating a seizure 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.’” State v. Wilkes, 756

N.W.2d 838, 843–44 (Iowa 2008) (quoting United States v. Mendenhall, 446 U.S.

544, 554 (1980)). Additionally, the “activation of emergency lights . . . invokes

police authority and implies a police command to stop and remain.” Id.; see also

State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981) (noting that a police siren is a

sign of authority, but holding no seizure occurred when no siren was used and

the police officer simply shined his flashlight in the defendant’s car).

       Here, the evidence establishes that Officer Aljets exercised his authority to

request Williams stop, rendering the encounter a seizure. The officer testified he

“hit the siren horn” which made a “whoop whoop” sound in order to get Williams’s

attention. The use of the siren is clearly a show of authority. See Harlan, 301

N.W.2d at 720. After Williams turned around and approached the police vehicle,

Officer Aljets requested that Williams stand in front of the squad car. Officer

Aljets then began questioning Williams. We conclude, based on our case law

and the totality of the circumstances, that Williams was seized. See id.; see also

State v. Lowe, 812 N.W.2d 554, 570 (Iowa 2012) (noting that a “commanding”

tone of voice is evidence of seizure).

       Furthermore, we do not agree with the State’s argument this was a

consensual encounter.      While it is true Williams approached the squad car
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without Officer Aljets requesting him to do so, the “whoop whoop” of the police

siren was enough of a show of authority to render the compliant contact

involuntary.   See Florida v. Royer, 460 U.S. 491, 497 (1983) (noting that a

consensual encounter between a police officer and a citizen is constitutionally

permissible, but the person must not feel compelled to speak with the officer or

be submitting to a claim of lawful authority).        Rather, the totality of the

circumstances indicates a reasonable person would not feel free to leave. See

Harlan, 301 N.W.2d at 720.       Therefore, we conclude this encounter was a

seizure under the Fourth Amendment; consequently, Officer Aljets was required

to have had reasonable suspicion to initiate the stop. See id. at 720–21.

IV. Reasonable Suspicion

       Given a seizure occurred, we must now decide whether Officer Aljets had

reasonable suspicion to stop Williams. Williams argues that his actions did not

give rise to reasonable suspicion, as he merely parked his vehicle and started

walking away. Williams further claims he did not lose his Fourth Amendment

protections while walking in a public place on a sidewalk.

       For a seizure to be constitutional, the officer must have reasonable

suspicion that a crime has occurred or is occurring. Wilkes, 756 N.W.2d at 843.

An officer has reasonable suspicion to stop a citizen when he has “specific and

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

leads to a reasonable belief that criminal activity may have occurred. State v.

Tague, 676 N.W.2d 197, 204 (Iowa 2004).          The reason for this stop is for

investigatory purposes, so an officer may confirm or dispel suspicions that

criminal activity has taken place. State v. Kreps, 650 N.W.2d 636, 641 (Iowa
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2002). Because the stop is a seizure, the stop must be reasonable under the

circumstances. Id.

       Based upon this record, we conclude Officer Aljets did not have

reasonable suspicion to initiate a stop. Though late at night, Williams’s activities

of parking in a laundromat parking lot and walking away do not support a

reasonable and articulable suspicion of criminal activity. Nor do we believe that

Officer Aljets’s hunch that Williams was turning to avoid being questioned on the

validity of his license was enough to form a belief that Williams was fleeing from

a police officer. See id. at 642 (holding that flight from a police officer constituted

reasonable suspicion, allowing the officer to make a constitutionally-permissible

stop); see also Delaware v. Prouse, 440 U.S. 648, 663 (1979) (holding law

enforcement does not have the right to stop drivers merely to check on their

driving status). Furthermore, Williams admitted to driving while his license was

suspended only after he was stopped and questioned. Given these facts, Officer

Aljets did not have reasonable suspicion to make the initial stop; consequently,

the seizure of Williams was in violation of the Fourth Amendment. Moreover,

because this Fourth Amendment violation occurred, the evidence discovered

following the seizure should have been suppressed. We therefore reverse the

order of the district court denying Williams’s motion to suppress.

       Because we reverse on the seizure issue, we need not address Williams’s

claim that trial counsel was ineffective.

       For these reasons, we reverse Williams’s convictions and remand for

entry of an order consistent with this opinion.

       REVERSED AND REMANDED.
