                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0577
                               Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHANIEL SCOTT AKERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Nicholas Scott, District

Associate Judge.



      A defendant appeals his conviction for possession of marijuana, second

offense. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                           2


TABOR, Presiding Judge.

          Nathaniel Akers appeals his conviction for possession of marijuana, second

offense.     He argues the district court should have suppressed the marijuana

because the police officer did not have probable cause to stop his car. After

carefully reviewing the video-recording of the traffic stop, we agree the officer did

not have probable cause to believe Akers was violating the rear-lighting statute at

the time the officer signaled him to stop. Accordingly, we reverse the suppression

ruling.

          Cedar Rapids police officer Nathan Baughan was part of a “selective

enforcement project” assigned to “monitor traffic flow” on the southeast side of the

city around 10:45 p.m. when he saw a green 1973 Buick LeSabre drive south at

the 100 block of Fifteenth Street, the same direction the marked squad car was

facing. Officer Baughan testified neither the Buick’s driver nor the passenger was

wearing a safety belt. The officer also testified that as he followed the Buick, he

noticed “it had a taillight out.” The officer further testified that when the Buick

stopped at the stop sign at Fifteenth Street and Second Avenue he could see the

driver’s side brake light “was out as well.”

          The officer caught up with the Buick at the intersection of Fifteenth Street

and Seventh Avenue and activated his lights and sirens, signaling the driver to

stop. According to the officer, the Buick travelled about two-and-a-half blocks

before pulling over into “a proper parking spot.” As the driver parked the car, he

also honked his horn. The officer testified that the driver, Akers, and his passenger

“then exited the vehicle and started towards the address where it later turned out

that the driver actually lived.” But the video from the officer’s dashboard camera
                                          3


does not show Akers moving away; rather it shows Akers walking toward the back

of his Buick to meet the officer where they appear to discuss the rear lamps.1

Officer Baughan then ordered Akers back to the driver’s seat and expressed his

displeasure concerning Akers’s decision to sound his horn.

       Officer Baughan testified that when he “engaged the driver in conversation”

he could “plainly” smell fresh marijuana coming from either Akers or the car.

Officer Baughan also testified Akers “had marijuana on his person” and “actually

turned that over to me” by pulling it from his pocket. But the minutes of testimony

indicate the officer handcuffed Akers and took the marijuana from his pocket. The

marijuana weighed approximately eight grams. Akers told Officer Baughan he had

just purchased the marijuana and planned to smoke it.

       Officer Baughan testified Akers asked why he was stopped, and Officer

Baughan “informed him both his taillight and his brake light and his seatbelt.”

Officer Baughan recalled Akers saying he didn’t think he needed to wear his

seatbelt because “his car was a 1973.” The officer testified he “corrected” Akers,

saying every vehicle manufactured after 1970 must have a shoulder and lap belt.

Defense counsel cross-examined the officer about the source of his belief

concerning the safety belt guidelines and directed the officer to Iowa Code section

321.445(1) (2016). The officer acknowledged on cross-examination he was not

able to determine if the Buick was equipped with a shoulder harness until he

“actually did the inspection of the vehicle.”




1
  The audio on the exhibit is spotty as the officer’s microphone picks up only bits and
pieces of the conversation.
                                            4


       At the suppression hearing, defense counsel submitted a video of the traffic

stop. Defense counsel argued:

              Upon review of that video, I believe that it’s clear that there
       were no lights out on this vehicle. I will leave that for the Court to
       review the video or make that determination factually, but I don’t
       believe the video evidence supports the testimony of Officer
       Baughan in regards to lights being out on this particular vehicle.

       As for the seatbelt issue, counsel argued the officer was operating under a

mistaken understanding of the law.

       In its suppression ruling, the district court wrote: “While there was much

emphasis placed on the seatbelts in the vehicle the court does not find it necessary

to reach that dispute.” Instead, the court rested its decision on the lighting issue.

The court reviewed the video and found “one segment of the defendant’s

passenger taillight was not illuminated.        See Exhibit A at 22:50:18.[2]        This

corroborates the officer’s testimony he observed the taillight was not illuminated

on the vehicle.” The court ruled the officer had probable cause to stop Akers’s

vehicle based on a violation of Iowa Code section 321.387.3

       After a stipulated bench trial, the district court found Akers guilty of

possession of marijuana, second offense.             He appeals that conviction by

challenging the suppression ruling.



2
  The time on the video-recording identified in the suppression ruling was after the Buick
had pulled over to the curb.
3
  This section states:
        Every motor vehicle . . . shall be equipped with a lighted rear lamp or lamps,
        exhibiting a red light plainly visible from a distance of five hundred feet to
        the rear. All lamps and lighting equipment originally manufactured on a
        motor vehicle shall be kept in working condition or shall be replaced with
        equivalent equipment.
Iowa Code § 321.387.
                                              5


       We review constitutional claims de novo, making an “independent

evaluation of the totality of the circumstances as shown by the entire record.” State

v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (quoting State v. Turner, 630 N.W.2d

601, 606 (Iowa 2001)). We give deference to the district court’s credibility findings

but are not bound by them. Id. When it comes to viewing a video exhibit, we are

“equally as capable as the trial court”, and when an officer’s statements are

contradicted by the video, “we give them little weight in our de novo review of the

evidence.” See State v. Binette, 33 S.W.3d 215, 219 (Tenn. 2000).

       Both the federal and state constitutions protect against unreasonable

searches and seizures. See U.S. Const. amend. IV; Iowa Const. art. I, § 8.4

Generally, an officer’s decision to stop a motorist is reasonable if the officer has

probable cause to believe the motorist violated a traffic law. State v. Pals, 805

N.W.2d 767, 773 (Iowa 2011).            “Probable cause exists if the totality of the

circumstances as viewed by a reasonable and prudent person would lead that

person to believe that a crime has been or is being committed and that the arrestee

committed or is committing it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa

1990). The State bears the “burden to prove by a preponderance of the evidence

that the officer had probable cause to” make the stop. Tague, 676 N.W.2d at 201.

Even a minor traffic or equipment violation may give an officer reason for a

stop. See State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006).


4
  Iowa’s appellate courts may “construe a provision of our state constitution differently than
its federal counterpart, though the two provisions may contain nearly identical language
and have the same general scope, import, and purpose.” See State v. White, 887 N.W.2d
172, 175–76 (Iowa 2016). But we need only reach the Fourth Amendment to decide this
appeal. See id.
                                               6


          Akers argues the stop was improper because any problem with his rear

lamps could not be detected until the officer had already stopped the vehicle. The

defense agrees “the dash cam video from the officer’s vehicle indicates that part

of Akers’s passenger taillight was not illuminated. (Ex. A 22:50:18).” But Akers

emphasizes “the video also shows the taillight was illuminated when the vehicle

was in motion; it only fails to illuminate when in reverse and parked. (Ex. A.

22:48:40-22:50:18).”

          The State defends the traffic stop, explaining that while the seatbelt issue5

originally prompted the officer to follow Akers, the officer also testified he saw a

taillight not working when the Buick was southbound on Fifteenth Street and noted

an inoperable brake light when the Buick stopped at a stop sign.

          The video contradicts the officer’s recollection. See Scott v. Harris, 550

U.S. 372, 378 n.5 (2007) (allowing the video to “speak for itself” in a civil case

involving a vehicle chase). First, we find it telling that the defense—rather than the

State—offered the video of the incident as an exhibit at the suppression hearing.

Second, the officer testified he had not reviewed the dashboard camera video and

did not fully recall the events as they unfolded, for example, he was uncertain

whether there was another vehicle between his squad car and the Buick before

the officer started his pursuit.

          Third, our own scrutiny of the video does not square with the officer’s

testimony that he could see rear-lighting glitches before he signaled for Akers to

stop. Officer Baughan testified a fixed dashboard camera cannot capture all the



5
    The video apparently was not activated when the officer initially saw the Buick drive by.
                                            7


images that an officer can see with his naked eye: “The camera doesn’t move, and

I do.” We have no doubt that is true, but the officer did not narrate any segment of

the video where he could see a lighting issue, from directly behind the Buick, that

would not be caught on the video. The officer agreed with defense counsel that

the camera would be “the most accurate reflection” of “anything within its view.”

       Fourth, the video belied the officer’s testimony concerning Akers’s actions

after the stop. The officer recalled Akers starting to walk toward his house after

the stop and pulling the marijuana from his own pocket; the video does not show

either of those events occurred.

       Fifth, the district court—which also viewed the video—found corroboration

of the officer’s testimony about the lighting violations based only on a moment in

the video that was after the Buick had pulled over to the curb and backed up into

a parking spot, well after the officer initiated the traffic stop.

       On appeal, the State does not point to any minute mark on the video exhibit

to support the officer’s testimony about the rear-lighting violations. Instead, the

State argues even if Akers was correct in asserting the officer could not have seen

an inoperable taillight or any other violation until Akers parked the Buick, “there

was no seizure under the constitution until the defendant had exited his car and

the officer directed him back to his car.” The State relies on California v. Hodari

D., 499 U.S. 621, 626 (1991), for the proposition that a suspect is not seized until

he yields to authority. The State contends even if the officer’s pursuit was a show

of authority, Akers did not yield to authority—and therefore was not seized—until

he pulled over to the curb, left the vehicle, and returned to the driver’s seat on the

officer’s order.
                                            8


       We decide whether an officer’s actions amount to a “seizure” by examining

the totality of the circumstances. White, 887 N.W.2d at 176. The activation of a

patrol car’s emergency lights is a show of authority and may “imply a police

command to stop and remain.” Id. When a person’s deference to that show of

authority “takes the form of passive acquiescence” then the test for determining if

a seizure occurred is whether a reasonable person would have believed he was

free to leave, as described in United States v. Mendenhall, 446 U.S. 544, 554

(1980), rather than the question of submission to authority as discussed in Hodari

D., 499 U.S. at 626. See Brendlin v. California, 551 U.S. 249, 255 (2007).

       Contrary to the State’s argument, Officer Baughan seized Akers when

Akers heeded the officer’s lights and sirens and pulled over to the curb. See State

v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013) (“A traffic stop is unquestionably a

seizure under the Fourth Amendment.”). Ackers passively acquiesced in Officer

Baughan’s show of authority by bringing his Buick to a stop. The malfunction in

one of the Buick’s six rear lamps, first visible when Akers placed the car in reverse

to finish parking, could not serve as an after-the-fact justification for the traffic stop.

Any probable cause to believe Akers had been driving the Buick in violation of

section 321.387 had to exist before the car was stopped. See id. at 293 (explaining

“purpose of a probable cause stop is to seize someone who has already committed

a crime”).

       Because the officer did not have probable cause to stop Akers’s vehicle, all

evidence flowing from the stop is inadmissible. We reverse the district court’s
                                      9


denial of the motion to suppress and remand for further proceedings consistent

with this opinion.

       REVERSED AND REMANDED.
