                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0137
                             Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT A. HOWARD,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Jackson County, Joel W. Barrows

(suppression ruling), Mark R. Lawson (trial on the minutes), and Paul L. Macek

(sentencing), Judges.



       A defendant challenges the traffic stop leading to his operating-while-

intoxicated conviction. REVERSED AND REMANDED.



       Joshua J. Reicks of Schoenthaler, Bartlett, Kahler & Reicks, Maquoketa,

for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.

Buller, Assistant Attorneys General, for appellee.



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

       Tires squealed. The sound came from the intersection of Platt and Niagra

Streets in downtown Maquoketa, which was also the location of the police

station. Officer Kody Sieverding heard the tires squeal from inside the station,

rushed to the back door, and saw a Chevy Monte Carlo heading west on Platt

Street. The officer took off in his squad car and stopped the Chevy in the Kwik

Star parking lot, a few blocks from the station. During his investigation, Officer

Sieverding detected the driver, Robert Howard, was intoxicated.            On appeal,

Howard contests the basis for the traffic stop that resulted in his arrest and

conviction for operating while intoxicated.

       In his motion to suppress, Howard asked the district court to exclude

evidence of his intoxication discovered during the stop, alleging the officer lacked

either probable cause or reasonable suspicion to pull him over. Howard’s motion

cited both the Fourth Amendment of the United States Constitution and article I,

section 8 of the Iowa Constitution.

       At the suppression hearing, the State offered testimony from Officer

Sieverding, who believed it was Howard who squealed his tires1 because

Howard’s car was the only one traveling west on Platt Street immediately after

the officer heard the noise. The officer also testified Howard’s car “appeared to

be going over the posted speed limit” of thirty-five miles per hour. After the
1
  While not citing specific code sections, the officer’s testimony suggested the tire
squealing violated Iowa Code sections 321.277A and 321.313 (2015). Section
321.277A(1) provides: “A person commits careless driving if the person intentionally
operates a motor vehicle on a public road or highway in any one of the following ways:
1. Creates or causes unnecessary tire squealing, skidding, or sliding upon acceleration
or stopping.” Section 321.313 states: “No person shall start a vehicle which is stopped,
standing, or parked unless and until such movement can be made with reasonable
safety.”
                                            3


officer’s testimony, the court viewed a video and audio recording of the traffic

stop.2 The defense then called Howard and Howard’s passenger to the stand.

They both testified the driver of the car in front of them at the intersection, not

Howard, was responsible for the squealing tires.

       In a ruling from the bench, the district court found all three witnesses

credible. The court then reasoned:

       But the Court doesn’t need to make a credibility determination here
       to decide this case. Probable cause is a close call here and the
       officer arguably did not have probable cause to stop this vehicle,
       but I don’t think that the Court necessarily needs to get there. The
       real question for the Court is whether or not there was reasonable
       suspicion to stop this vehicle.

The court discussed the case law governing reasonable suspicion for

investigatory stops and concluded “based on the stated observations of Officer

Sieverding, the fact that they were close in time and place to the investigatory

stop based on his own observations that he did, in fact, have reasonable·

suspicion to stop this vehicle.”

       After losing his motion to suppress, Howard stipulated to the minutes of

evidence,    including    expected     testimony    that   Howard’s      blood    alcohol

concentration was .113.       The court found Howard guilty of operating while

intoxicated, first offense, in violation of Iowa Code section 321J.2. He received a

thirty-day jail sentence with all but two days suspended. His appeal focuses

solely on the suppression ruling.
2
  The video shows Officer Sieverding at the driver’s window asking Howard: “Did you
squeal your tires back there?” Howard responds: “No, sir.” When asked who did squeal
their tires, Howard blames “the guy in front” of him. But the officer tells Howard he did
not see another car driving away from the stop sign “in front of the PD.” Later during the
encounter, the officer asks Howard: “Do you think that was a wise decision to squeal
your tires right by the police department?” Howard responds he didn’t remember
squealing his tires, but “if I did I’m sorry. I didn’t realize it.”
                                          4


       Our review is de novo, which means we independently evaluate the entire

record under the totality of circumstances. State v. Tyler, 830 N.W.2d 288, 291

(Iowa 2013). Because the district court had the chance to assess the credibility

of the witnesses first hand, we defer to its factual findings, but we are not bound

by them. Id.

       This appeal presents a matrix of possible outcomes. The parties debate

the legality of the stop under both the Fourth Amendment and article I, section 8

and whether the officer acted with probable cause or reasonable suspicion. The

parties also clash on the question whether the alleged criminal activity was

ongoing or completed.3

       Probable Cause. We turn first to the State’s argument Officer Sieverding

had probable cause to stop Howard for a traffic offense—namely, careless

driving or speeding.     Probable cause is measured by “the totality of the

circumstances as viewed by a reasonable and prudent person” and must lead to

the reasonable belief that a crime occurred and the would-be arrestee committed

the offense. See State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). “When a

peace officer observes a violation of our traffic laws, however minor, the officer

has probable cause to stop a motorist.” Id. Probable cause would justify a stop

under either the Federal or Iowa Constitution. See Tyler, 830 N.W.2d at 292.

       After independently reviewing the record, we find the facts before the

officer did not amount to probable cause to stop Howard’s car. The officer may

3
   The State contends Howard did not preserve error on his argument that an
investigatory stop based solely on reasonable suspicion of a completed misdemeanor is
unconstitutional because the position was not fully formed until the defense motion to
reconsider. Because we resolve Howard’s case without reaching that argument, we
need not address the error-preservation question.
                                           5


have reasonably deduced the offense of careless driving4 occurred when he

heard squealing tires, but the officer’s inability to see the intersection from inside

the police station left too much doubt surrounding the officer’s assumption

Howard was the careless driver. The officer testified only a few seconds elapsed

between the squealing tires and his observation of Howard driving west on Platt

Street, the only car moving that direction. But even if the officer’s timing estimate

was accurate concerning westbound traffic, he could not rule out the possibility

the actual offender headed east, north, or south from the intersection. It was only

8:30 p.m. when the officer saw Howard’s car, and the video exhibit shows that

while Maquoketa’s downtown streets were not jam-packed at that hour, neither

were they deserted. Because the officer did not witness the careless-driving

violation, the State did not establish probable cause for the stop. 5 See id. (“If a

traffic violation actually occurred and the officer witnessed it, the State has

established probable cause.”).

       We are likewise leery of the officer’s conclusory testimony that Howard’s

car “appeared to be going over the posted speed limit.” The officer did not use

radar, nor was he able to keep pace with Howard’s car to compare its speed with

the squad car. See State v. Johnson, No. 14-0833, 2015 WL 1817108, at *2

(Iowa Ct. App. Apr. 22, 2015) (“An officer may use several methods to determine

4
  The State does not explain how squealing tires fits the elements of an unsafe start
under section 321.313. That section prohibits motorists from moving their cars until they
can do so “with reasonable safety.” See Janvrin v. Broe, 33 N.W.2d 427, 433 (Iowa
1948).
5
  We realize probable cause does not mean “more probable than not” and probable
cause may exist even if two or more possible suspects are involved. See State v.
Horton, 625 N.W.2d 362, 365 (Iowa 2001) (citation omitted). But here, the officer could
not meaningfully identify possible suspects because, from his vantage point, he could
not see motorists leaving the intersection.
                                         6


whether a person is driving at an excessive speed.”). Unlike the patrol officer in

Johnson, who testified to his extensive training and experience in visually

estimating speed, see id., here the State did not elicit any testimony from

Sieverding regarding his credentials in speed estimation. On cross-examination,

the officer acknowledged he had not received specific training on how to gauge

distances and generate a speed determination. We find this case is more akin to

State v. Petzoldt, No. 10-0861, 2011 WL 2556961, at *3–4 (Iowa Ct. App. June

29, 2011), where our court found insufficient foundation for the officer’s belief the

motorist was speeding when the officer did not use radar or pacing and instead

based his conclusion on his “years of experience looking at vehicles and the

speeds they are going.”

       Reasonable Suspicion. Finding no probable cause for the traffic stop,

we shift to the question whether Officer Sieverding had reasonable suspicion to

believe Howard was engaging in criminal activity. See State v. Pals, 805 N.W.2d

767, 774 (Iowa 2011) (explaining “police may detain persons in the absence of

probable cause if the police have reasonable suspicion to believe criminal activity

is taking place”).   Reasonable suspicion is a less demanding standard than

probable cause. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The State

has the burden to show by a preponderance of the evidence the stopping officer

possessed specific and articulable facts, which, when taken together with rational

inferences from those facts, provided reason to believe criminal activity may have

occurred. Tague, 676 N.W.2d at 204 (“Mere suspicion, curiosity, or hunch of

criminal activity is not enough.”). We determine whether reasonable suspicion

exists for an investigatory stop in light of the totality of the circumstances
                                          7


confronting a police officer, including all information available to the officer at the

time the decision to stop is made. State v. Kreps, 650 N.W.2d 636, 642 (Iowa

2002).

         Howard argues Officer Sieverding had “only a hunch”6 it was Howard who

squealed his tires. We agree the officer acted on “unparticularized suspicion”

when stopping Howard. See Terry, 392 U.S. at 27. Officer Sieverding could not

see the source of the squealing tires; he was only aware the noise came from the

intersection outside of the police station. The officer hurried to the back door to

see a single car driving west from the intersection. The district court concluded

the officer had reasonable suspicion because his aural and visual observations

were close in time and place to the investigatory stop.

         But as discussed in our probable cause analysis, the officer had no

information available regarding cars that may have been traveling in the other

three directions from the intersection or regarding cars that may have been

ahead of Howard’s car traveling west. The uncertainty in the situation was too

great to justify the arbitrary police intrusion upon Howard’s right of privacy. See

Tague, 676 N.W.2d at 205–06. The possibility Howard was the source of the

criminal conduct was not “strong enough that, upon an objective appraisal of the

situation, we would be critical of the officer[] had [he] let the event pass without

investigation.” See Kreps, 650 N.W.2d at 642. Because the officer did not have

reasonable suspicion to stop Howard’s vehicle, all evidence flowing from the stop


6
  The term “hunch” appeared in Terry v. Ohio, 392 U.S. 1, 27 (1968), where the court
contrasted such an “inchoate and unparticularized suspicion” with “specific reasonable
inferences” drawn from the facts in light of the officer’s experience.
                                     8


is inadmissible. We reverse the district court’s denial of Howard’s motion to

suppress and remand the case for further proceedings consistent with this

opinion.

      REVERSED AND REMANDED.
