                     IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0833
                                 Filed April 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONALD TRAJWAN JOHNSON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Thomas W. Mott

(motion to suppress), Odell G. McGee (trial), and Carol Egly (sentencing), District

Associate Judges.



       Defendant appeals his conviction for operating while intoxicated, second

offense. AFFIRMED.




       Larry L. Ball Jr., Altoona, for appellant.

       Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, John Sarcone, County Attorney, and Maurice Curry, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., Doyle, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

       Defendant Donald Johnson appeals his conviction for operating while

intoxicated (OWI), second offense. Johnson claims the stop of his vehicle was

not justified because the officer came to the conclusion he was speeding without

a supporting factual basis. We find the officer had specific and articulable facts

to support his belief Johnson was speeding. We conclude the court properly

denied Johnson’s motion to suppress, and we affirm his conviction.

       I. Background Facts & Proceedings.

       At about 2:00 a.m. on November 3, 2013, Officer Brian Cuppy of the

Des Moines Police Department was on patrol driving westbound across the

Walnut Street bridge when he observed a black Yukon traveling eastbound on

Walnut Street. He stated as the vehicle passed him, “it’s obvious he’s going well

above the speed limit,” which was twenty-five miles per hour. Officer Cuppy

made a U-turn and activated his lights. During the time it took him to complete

this maneuver, the black Yukon had traveled two blocks and turned into a

parking lot. Officer Cuppy had to accelerate rapidly to catch up to the vehicle.

       When Officer Cuppy approached the driver, Johnson, he noticed signs of

intoxication.   Johnson stated he had been drinking alcohol.           He failed field

sobriety tests. Johnson was arrested and taken to the police station. A breath

test showed his alcohol level was .119, over the legal limit of .08.

       Johnson was charged with OWI, second offense, in violation of Iowa Code

section 321J.2 (2013). Johnson filed a motion to suppress, claiming the officer

did not have probable cause to stop his vehicle. At the suppression hearing
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Officer Cuppy stated it would have taken a shorter amount of time for him to

catch up to Johnson if Johnson had been driving the speed limit of twenty-five

miles per hour.      Officer Cuppy stated he was not equipped with radar on

November 3, 2013. He stated he was not able pace the vehicle because of how

quickly it turned into the parking lot. He did not give an estimate of the speed of

the vehicle but stated he believed the vehicle was going well above the speed

limit.

         The district court denied the motion to suppress. The court found Officer

Cuppy had probable cause to believe Johnson was speeding.                  The court

concluded Officer Cuppy had not merely made a conclusion but had articulated

his observations leading to his belief Johnson was speeding.

         Johnson waived his right to a jury trial, and the case was tried to the court

based upon the minutes of evidence. The court found Johnson guilty of OWI,

second offense. He was sentenced to two years in prison, with all but ten days

suspended, and placed on probation for two years.            Johnson now appeals,

claiming the court should have granted his motion to suppress.

         II. Standard of Review.

         When a challenge to a ruling on a motion to suppress raises constitutional

grounds, our review is de novo. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

We conduct an independent evaluation of the totality of the circumstances as

shown by the entire record. Id. We give deference to the court’s factual findings

based on the court’s opportunity to observe the witnesses but are not bound by

such findings. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).
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       III. Merits.

       Johnson contends the stop of his vehicle was not justified under the

Fourth Amendment to the United States Constitution and article 1, section 8 of

the Iowa Constitution because the officer came to the conclusion he was

speeding without a supporting factual basis. He asserts there is no evidence of

his actual speed because the officer was not equipped with radar, he did not

engage in a visual estimation of Johnson’s speed, and the officer did not

determine Johnson’s speed by pacing his vehicle. He claims Officer Cuppy was

unable to point to specific and articulable facts to warrant the stop.

       The Fourth Amendment protects against unreasonable searches and

seizures. State v. Lloyd, 701 N.W.2d 678, 680 (Iowa 2005). “If evidence is

obtained in violation of the Fourth Amendment, it is inadmissible regardless of its

relevancy or probative value.” Id. Generally, a search warrant is required prior to

a search or seizure unless the circumstances come within an exception to the

warrant requirement. State v. Louwrens, 792 N.W.2d 649, 651 (Iowa 2010).

“When a peace officer observes a traffic offense, however minor, the officer has

probable cause to stop the driver of the vehicle.” State v. Harrison, 846 N.W.2d

362, 365 (Iowa 2014). A traffic violation also establishes reasonable suspicion

for a stop. Id.

       A person who drives at an “excessive speed in violation of a speed limit

commits a simple misdemeanor.”         Iowa Code § 321.285(7).           An officer has

probable cause to stop a vehicle the officer has observed to be speeding. State

v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). Reasonable suspicion to stop a
                                        5


vehicle exists when an officer has specific and articulable facts, together with

reasonable inferences from those facts, to reasonably believe criminal activity is

occurring. State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015); State v. Tague,

676 N.W.2d 197, 204 (Iowa 2004).

      An officer may use several methods to determine whether a person is

driving at an excessive speed.      In Predka, 555 N.W.2d at 206, the officer

“observed Predka speeding and corroborated it through radar.” In State v. Hicks,

791 N.W.2d 89, 93 (Iowa 2010), an officer kept pace with the defendant’s car as

it went over the speed limit, which allowed for a reasonable inference the

defendant was traveling in excess of the speed limit. In State v. Bedwell, 417

N.W.2d 66, 70 (Iowa 1987), an officer testified he was unable to get a steady

pace from the defendant’s vehicle, but the officer was traveling in excess of the

speed limit and was “just keeping pace” with the defendant. The Iowa Supreme

Court determined this testimony was sufficient to show the defendant had been

traveling at an excessive speed. Bedwell, 417 N.W.2d at 70.

      In the present case, Officer Cuppy, a member of the traffic unit, testified to

his training and experience in visually estimating the speed of vehicles.       He

stated officers in the traffic unit were required to estimate the speed of twenty

moving vehicles and in order to pass could only miss one vehicle by one mile per

hour. He also testified he made a regular practice of estimating the speed of

vehicles and then confirming his estimate with radar. Officer Cuppy testified in

the time it took him to make a U-turn the vehicle had traveled two blocks and

pulled into a parking lot. He stated he had to “accelerate rapidly” and drove
                                          6


“pretty fast” to catch up to the vehicle. He testified he would not have had to

drive as fast to catch up to the vehicle if it had been traveling at the speed limit of

twenty-five miles per hour. Officer Cuppy testified the vehicle was traveling at a

“high rate of speed,” “well above the speed limit.”

       The district court found, “Cuppy possessed sufficient skill, experience, and

information to estimate the black Yukon’s speed at the time.” The court stated,

“Cuppy watched the Yukon travel at a speed that appeared well above 25 mph.”

The court concluded:

               The facts of this case distinguish it from the case of State v.
       Petzoldt, [No. 10-0861, 2011 WL 2556961 (Iowa Ct. App. June 29,
       2011)], where the court reversed the denial of Petzoldt’s motion to
       suppress evidence in an OWI case. The LeMars police based on
       investigatory stop on alleged speeding. In the early morning hours,
       Officer King parked his patrol car on a street off Central Avenue
       and played computer solitaire to break the monotony. Petzoldt
       drove by in a pickup which King thought was speeding. The video
       recorded from the patrol car cam did not show enough for the
       viewer to discern the speed. Officer King made no estimate of the
       speed, or of how much over the speed limit he thought defendant
       was driving. He stated that he, “reached his conclusion based
       upon ‘years of experience looking at vehicles and speeds they are
       going,’ something he did every day in his job as a thirty-one year
       veteran of the police force.” Petzoldt, [2011 WL 2556961, at *3].
       The court held that King testified merely to a conclusion, failing to
       articulate observations or facts that would lead to the conclusion.
       Relying merely on his experience as a police officer did not suffice
       as evidence or reasons for his belief Petzoldt’s pickup was
       speeding.
               In this case, by contrast, peace officer Brian Cuppy
       articulated his observations leading to his belief defendant was
       speeding. He did not merely leap to a conclusion. He possessed
       probable cause to believe defendant was speeding, legitimately
       stopped defendant for speeding, and infringed none of defendant’s
       rights to freedom from unreasonable search and seizure as he
       dealt with him and made observations leading to discovery of
       evidence relevant to the trial on an OWI charge.
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       In our de novo review, we agree with the court’s conclusions. Officer

Cuppy’s belief Johnson was traveling in excess of the speed limit was not merely

a conclusion.    The officer’s belief was based upon his specific training and

experience in visually determining the speed of vehicles. The officer noted the

vehicle traveled two blocks in the time it took him to make a U-turn, which

supported his belief the vehicle was traveling in excess of twenty-five miles per

hour. The officer also noted he needed to “accelerate rapidly” and drive “pretty

fast” to catch up to the vehicle. Officer Cuppy testified it took him longer to catch

up to the vehicle than it would have if the vehicle had been traveling at twenty-

five miles per hour. We determine the officer had specific and articulable facts to

support his belief Johnson was engaging in criminal activity by driving in excess

of the speed limit.

       We conclude the court properly denied Johnson’s motion to suppress. We

affirm his conviction for OWI, second offense.

       AFFIRMED.

       Doyle, J., concurs; Danilson, C.J., dissents.
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DANILSON, C.J. (dissenting)

        I respectfully dissent.   I cannot conclude there were specific and

articulable facts to support a reasonable suspicion to stop Johnson’s vehicle on

this record. Although the officer may have had the experience and training to

estimate the speed of Johnson’s vehicle, I can only surmise the meaning of the

officer’s testimony that Johnson’s vehicle was traveling “well above” the speed

limit. Does “well above” to this officer mean five miles per hour over the speed

limit, or even twenty or thirty miles per hour over the speed limit? Even if the

officer has little time to give an accurate estimate, there has to be some

illumination upon the conclusory statement of “well above” the speed limit.

Without some ballpark estimate of speed, it is nearly impossible to judge the

weight to be afforded to the balance of the officer’s testimony.

        Moreover, the weight to be afforded to this officer’s testimony is hindered

by the fact that no citation was issued for speeding, the very basis alleged for the

stop.   In fact, unless the individual admits to the speed traveled, this officer

apparently does not ever issue a speeding citation where the motorist is stopped

upon the officer’s estimate of speed.

        The record made to support a stop premised upon an officer’s estimate of

speed needs to include facts, not conclusory statements—facts that can be

weighed against the balance of the testimony, or in other words, a record “well

above” the record shown here. I would reverse.
