                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0640
                              Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEBBIE LIN CAMPBELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William A. Price

(motion to suppress) and Gregory D. Brandt (bench trial), District Associate

Judges.



      A defendant appeals her conviction claiming the district court should have

granted her motion to suppress evidence. REVERSED AND REMANDED.



      Alexander D. Smith of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                              2


VOGEL, Presiding Judge.

         Debbie Lin Campbell appeals following her conviction for possession of a

controlled substance, second offense, following a bench trial on the stipulated

minutes of testimony. See Iowa Code § 124.401(5) (2016). She claims the

district court should have granted her motion to suppress evidence found during

the search of her purse. We conclude the deputies illegally seized Campbell’s

purse when she was ordered to place her purse back in the car after she had

exited, and as a result, the evidence found in her purse should be suppressed.

We reverse and remand for a new trial.

I. Background Facts and Proceedings.

         In the late night hours of January 10, 2016, Campbell was a passenger in

a car being driven by Roger Nourie. Polk County Deputy Nihad Hodovic stopped

Nourie’s car for an expired registration tag. Nourie accompanied Deputy Hodovic

back to the deputy’s vehicle, but Campbell remained in the passenger’s seat of

Nourie’s car. Deputy Hodovic discovered Nourie’s driver’s license was revoked1

and he did not have valid insurance on the car.             Based on this information,

Deputy Hodovic decided to impound the car and issue citations to Nourie.

         Deputy Jason Sadler arrived on scene to assist, and Deputy Hodovic

asked him to remove Campbell from the car and place her, with Nourie, in the

back of Deputy Hodovic’s vehicle because Deputy Hodovic had agreed to give

them a ride home. Deputy Sadler asked Campbell to step out of the vehicle, and

Campbell complied, carrying her purse in her hand.                  Deputy Sadler then

instructed Campbell to place her purse back in the car; Campbell did as she was

1
    Campbell also informed Deputy Hodovic that she did not have a valid driver’s license.
                                          3


directed. Deputy Sadler then had Campbell open her jacket and turn around

before placing her in the back seat of Deputy Hodovic’s vehicle.

       The deputies then conducted an inventory search of Nourie’s car,

discovering a small amount of marijuana in a pill container, bearing Nourie’s

name. Nourie admitted the marijuana was his. The deputies then searched

Campbell’s purse, which was still in the car, locating prescription medication.

Campbell admitted she did not have a valid prescription for the pills and could not

recall the name of the medication.        The deputies determined the pills were

alprazolam, and Campbell was arrested and charged with the illegal possession

of the medication.

       Campbell filed a motion to suppress the evidence discovered in the search

of her purse, claiming it violated her federal and state constitutional rights to be

free from unreasonable searches and seizures. Specifically, she claimed the

deputy illegally directed her to place her purse back in the car when she exited,

which then made the purse a container in the car that could be searched after

marijuana was found in the car. The State resisted the motion, claiming that the

location of the purse at the time the marijuana was discovered did not make a

difference as the discovery of the marijuana gave the deputies probable cause to

search all containers located in the vehicle at the time the vehicle was stopped.

The State claimed the purse could have been searched after marijuana was

discovered in the car because it was inside the car when the car was seized by

the deputies.2


2
  We note this argument is not repeated by the State on appeal. However, the
automobile exception permits all containers inside a vehicle to be searched at the time
                                             4


       At the hearing on the motion to suppress, the court heard the testimony of

Deputy Sadler and observed a portion of the dash cam video of the stop from

Deputy Hodovic’s vehicle.        Deputy Sadler testified he instructed Campbell to

place her purse back into the car after she exited the car with her purse in hand.

Deputy also Sadler testified, “I never let anybody take a purse with them or any

items due to it’s part of the inventory search. It needs to be inventoried to make

sure nothing of value as well as any weapons, officer’s safety. We don’t know

what she has in the purse with her.” Deputy Sadler went on to explain:

       [D]ue to close contact, the nature in dealing with the person or even
       having the patrol car, we don’t know what’s on the person or in the
       purse. So therefore, we want to verify there [are] no weapons,
       nothing to prevent or jeopardize our safety, or to their safety,
       whether it may be something they may have.

The district court denied Campbell’s motion on the record, stating:

       The court finds that on or about January 10, 2016, a vehicle being
       operated by Mr. Roger Nourie was stopped in the 3900 block of
       East 29th Street by [Deputy] Hodovic, that [Deputy] Hodovic
       determined that Mr. Nourie was a revoked driver, that the
       registration to the vehicle was expired, and Mr. Nourie did not

when probable cause to search arises, not all containers located in the vehicle at the
time the vehicle is stopped. See State v. Eubanks, 355 N.W.2d 57, 60 (Iowa 1984)
(“Once the patrolman lawfully stopped the car and had probable cause to search it for
contraband, in this case marijuana, he could lawfully open and examine all containers
within the vehicle from the time probable cause appeared.” (emphasis added)). Often
the lawful stop of the vehicle and the probable cause to search will occur
contemporaneously, as in Eubanks, where the officer smelled marijuana as the officer
approached the car. Id. at 58. Thus, Eubanks’s removal of her purse after the officer
asked her to step out of the vehicle did not insulate the purse from the automobile
exception search because the purse was in the vehicle at the time the officer smelled the
marijuana. Id. at 60 (“Once the patrolman lawfully stopped the car and had probable
cause to search for contraband, all containers within the car when it was stopped were
fair game for the car search. Defendant had no right to insulate her purse or any other
container from a lawful warrantless search by the simple expedient of physically
removing the purse and its contents from the car while the search was in progress.”
(emphasis added)). In this case, both the stop of the car for the registration violation and
the officer’s instruction to Campbell to place her purse back in the car, preceded the time
when probable cause to search the car arose due to the discovery of the marijuana in
the center console during the inventory search.
                                  5


produce current proof of insurance. A decision was made to
impound the vehicle.
        Mr. Nourie was already out of the vehicle. And [Deputy]
Sadler, who had come to the place of the stop, was asked to have
Ms. Campbell come out of the vehicle that had been operated by
Mr. Nourie as the vehicle was going to be impounded.
        Ms. Campbell was going to be placed in a sheriff’s vehicle[.]
[P]rior to being placed in the vehicle[, a]s noted on defendant’s
Exhibit A [the dash cam video of the traffic stop], Ms. Campbell was
not physically patted down but was asked to open her coat, which
she did[,] to face the deputy, [and then to] face away from the
deputy and he observed Ms. Campbell prior to placing Ms.
Campbell in the deputy’s vehicle.
        As Ms. Campbell was getting out of the vehicle, she was
directed to leave her purse in the vehicle that had been operated by
Mr. Nourie and as explained by Deputy Sadler, this was for officer
safety at the scene until the purse could be determined to not
contain anything that would, you know, would be unsafe to the
officers.
        Thereafter, because the vehicle was being impounded, an
impound search commenced.             Pursuant to Deputy Sadler’s
request, the purse of Ms. Campbell was still in the vehicle[,]
[d]espite her initial attempt to take the purse with her from the
vehicle[.] [T]hat as a part of the impound search, marijuana was
found in the vehicle by Deputy Hodovic, that the detectives then
began to look in the vehicle for further controlled substances, [and]
that because this was a vehicle and deputies had at that point
probable cause to believe that the vehicle may contain other
controlled substances.
        However, the court believes that the issue of exigent
circumstances had disappeared at that instant. The reason being
that the decision was made to impound. They were still going
through the impound search. That vehicle can’t go anyplace until
the deputies decided it to go anyplace because they would be the
ones to impound it. Consequently, at that moment, there are no
more exigent circumstances.
        ....
        I believe it is noteworthy that Ms. Campbell was not given
the option of either leaving her purse for inspection or allowing [her]
to take her purse and leave the area, keeping in mind that Ms.
Campbell was not in custody and had not been charged with any
offense at that time.
        ....
        The court views that Wyoming v. Houghton[, 526 U.S. 295
(1999),] is the controlling case in this area, and it is clear in
Wyoming v. Houghton that once probable cause justifies the search
of a lawfully stopped vehicle, and there is no evidence that this was
                                         6


      not a lawfully stopped vehicle and, in fact, the only evidence is that
      it was lawfully stopped, that such search of every part of the vehicle
      and its contents that may conceal the object of the search is
      appropriate and that this rule applies to all containers within the
      vehicle without qualifications as to the ownership or without
      showing individualized probable cause for each container.
              It’s also clear from Wyoming v. Houghton that passengers
      possess a reduced expectation of privacy just like drivers do with
      regard to property that they transport in a vehicle. For all the
      foregoing reasons, the court finds that the motion to suppress
      should be and the same is hereby denied and this matter will be
      confirmed for trial.

      After the district court denied the motion to suppress, Campbell stipulated

to a bench trial on the minutes of testimony. The court found Campbell guilty as

charged, sentenced her to fourteen days in jail, and suspended the fine.

Campbell now appeals.

II. Scope and Standard of Review.

      We review this case de novo because it “concerns the constitutional right

to be free from unreasonable searches and seizures.” State v. Gaskins, 866

N.W.2d 1, 5 (Iowa 2015). In a de novo review, “[w]e independently evaluate the

totality of the circumstances found in the record, including the evidence

introduced at both the suppression hearing and at trial.” Id.

III. Seizure and Search of the Purse.

      The Fourth Amendment of the United States Constitution and article I,

section eight of the Iowa Constitution protect individuals from unreasonable

searches and seizures. U.S. Const. amend. IV; Iowa Const. art. I, § 8. “‘A

warrantless search is presumed unreasonable’ unless an exception applies.”

Gaskins, 866 N.W.2d at 7 (citation omitted).      The recognized exceptions for

warrantless searches include: “(1) consent search; (2) search based on probable
                                        7


cause and exigent circumstances; (3) search of items in plain view; or (4) search

incident to a lawful arrest.” State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001).

      The State asserts the search of Campbell’s purse was justified based on

the second exception—probable cause and exigent circumstances. The State

points to the discovery of the small amount of marijuana in a pill container during

the inventory search as providing the probable cause to search Campbell’s purse

and the location of the pill container—Nourie’s car—as providing the exigent

circumstances. See State v. Storm, ___ N.W.2d ___, ___, 2017 WL 2822483, at

*6, *14 (Iowa 2017) (retaining the automobile exception to the warrant

requirement “at the present time”); State v. Allensworth, 748 N.W.2d 789, 796

(Iowa 2008) (concluding probable cause for an automobile exception search may

“evolve from the discovery of contraband in the course of a proper inventory

search” and noting “the only exigency required to justify a warrantless search of a

vehicle is the vehicle’s ready mobility”). In addition, when probable cause arises

to search a vehicle for contraband, that search constitutionally extends to the

property of passengers located in the vehicle without a need for probable cause

to search the passenger specifically.       Houghton, 526 U.S. at 307 (noting

probable cause to search the vehicle for drugs occurred when the officers

observed a hypodermic needle in the driver’s shirt pocket, the officers then asked

the passengers to exit the vehicle to conduct a search, and the passenger left

her purse behind when exiting and holding “police officers with probable cause to

search a car may inspect passengers’ belongings found in the car that are

capable of concealing the object of the search” (emphasis added)).
                                            8


       However, Campbell does not contest the deputy’s ability to search her

purse as a container in the car once probable cause was established through the

discovery of marijuana. Instead, she contests the deputy’s authority to order her

to place her purse back in the car, making it subject to the inventory search, at a

time when there was no probable cause to believe the purse or the vehicle

contained anything illegal. She claims the deputy unlawfully seized her property

by ordering her to place her purse back into the car, subjecting her property to

the inventory search and then the later search under the automobile exception.3

       “A seizure occurs when an officer by means of physical force or show of

authority in some way restrains the liberty of a citizen.”          State v. White, 887

N.W.2d 172, 176 (Iowa 2016) (citation omitted). With respect to the seizure of

property, a seizure occurs “when there is some meaningful interference with an

individual’s possessory interests in that property.” United States v. Jacobsen,

466 U.S. 109, 113 (1984).        We evaluate the totality of the circumstances to

determine whether a seizure has occurred. White, 887 N.W.2d at 176. Factors

we consider 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


3
  The State asserts Campbell did not preserve error on her claim of an illegal seizure of
the property, so this assertion must be raised through an ineffective-assistance claim.
However, we conclude Campbell did preserve error on this issue because she
challenged the officer’s “authority” to order her to place her purse back in the car in her
written motion to suppress and asserted at the hearing on the motion that the evidence
had to be suppressed due to the “illegal search and seizure.” In addition, the district
court in its findings on the record noted that Campbell was not given the option of either
leaving her purse or taking it and leaving the area. The court also noted Campbell was
not in custody and had not been charged with any offense at the time she was instructed
to leave the purse behind. Thus, we conclude the issue was preserved for our review.
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (“Where the trial court’s ruling, as
here, expressly acknowledges that an issue is before the court and then the ruling
necessarily decides that issue, that is sufficient to preserve error.”).
                                           9


the use of language or tone of voice indicating that compliance with the officer’s

request might be compelled.” Id. (citation omitted).

       There is no question that the deputies seized both Nourie and Campbell

when the officer initiated the traffic stop of Nourie’s car based on the expired

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

unquestionably a seizure under the Fourth Amendment.”). Deputy Hodovic then

made the decision to issue citations, rather than arrest Nourie, for the violations

discovered during the stop, but he also made the decision to impound Nourie’s

vehicle. The deputies could then ask Campbell to step out of the vehicle for the

purpose of completing the inventory search and impounding the vehicle in which

she was sitting.4 Maryland v. Wilson, 519 U.S. 408, 415 (1997) (“[A]n officer

making a traffic stop may order passengers to get out of the car pending

completion of the stop.”).

       As she was removing herself from the car as instructed by the deputies,

Campbell took her property—her purse—with her. She was then instructed by

Deputy Sadler to put her purse back in the car. We conclude this was a seizure

of Campbell’s purse as the deputy removed it from Campbell’s possession by

instructing her to leave it behind and directing her where to place it.              No

reasonable person would have felt free to ignore the deputy’s direction and retain

possession of the purse.       State v. Lowe, 812 N.W.2d 554, 570 (Iowa 2012)

(“Encounters with the police remain consensual ‘[s]o long as a reasonable


4
  The car was being impounded, so Campbell would have needed to find alternate
transportation to take her to her final destination. Prior to Campbell being removed from
the car, Nourie had requested Deputy Hodovic drive him, and presumably Campbell, to
Nourie’s residence a short distance away, and the deputy agreed.
                                         10


person would feel free to disregard the police and go about his business.’”

(citation omitted)).

       “[W]hen the police seize luggage from the suspect’s custody, we think the

limitations applicable to investigative detentions of the person should define the

permissible scope of an investigative detention of the person’s luggage on less

than probable cause.” United States v. Place, 462 U.S. 696, 708–09 (1983). For

an investigative detention to lawfully occur, “the officer must be able to point to

‘specific and articulable facts, which taken together with rational inferences from

those facts, reasonably warrant that intrusion.’” State v. Kreps, 650 N.W.2d 636,

641 (Iowa 2002) (citations omitted); see also Terry v. Ohio, 392 U.S. 1, 21

(1968).

       In determining the reasonableness of the particular search or
       seizure, the court judges the facts against an objective standard:
       “would the facts available to the officer at the moment of the seizure
       or the search ‘warrant a man of reasonable caution in the belief’
       that the action taken was appropriate?”

Kreps, 650 N.W.2d at 641 (citations omitted).

       The deputies had no specific articulable suspicion that Campbell was

committing a crime or was about to commit a crime. Instead, Deputy Sadler cited

“officer safety” as the reason for preventing Campbell to maintain control of her

property. Terry authorizes a search for weapons for officer safety, but only

       where he has reason to believe that he is dealing with an armed
       and dangerous individual, regardless of whether he has probable
       cause to arrest the individual for a crime. . . . [T]he issue is whether
       a reasonably prudent man in the circumstances would be
       warranted in the belief that his safety or that of others was in
       danger. And in determining whether the officer acted reasonably in
       such circumstances, due weight must be given, not to his inchoate
       and unparticularized suspicion or “hunch,” but to the specific
                                        11


       reasonable inferences which he is entitled to draw from the facts in
       light of his experience.

392 U.S. at 27. There is no evidence in the record that either deputy, at the time

when Campbell was instructed to place her purse back in the car, had any

specific and articulable facts to believe Campbell was armed with a weapon or

that she presented a danger to the deputies. See Ybarra v. Illinois, 444 U.S. 85,

93–94 (1979) (“Nothing in Terry can be understood to allow a generalized

‘cursory search for weapons’ or indeed, any search whatever for anything but

weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for

weapons on less than reasonable belief or suspicion directed at the person to be

frisked . . . .”). At that moment, she was merely a cooperative passenger seated

in a vehicle that was being impounded for a registration violation.

       We conclude the deputy’s instruction for Campbell to place her purse back

in the car was an illegal seizure of her property as it interfered with her

possessory interest in her purse with no reasonable suspicion that the purse

contained anything illegal or dangerous to the deputies. See State v. Tanner,

915 So. 2d 762, 764 (Fla. Dist. Ct. App. 2005) (concluding the holding of the

driver’s car for a dog sniff did not “authorize the deputies to deprive [the

passenger] of her purse and, under the circumstances, detain her. ‘[She] did

nothing to warrant her individual detention . . . nor was there an independent

“reasonable suspicion” that her purse contained contraband’” (second alteration

in original) (citation omitted)); State v. Newsom, 979 P.2d 100, 102 (Idaho 1998)

(“Therefore, we conclude that when a passenger left the vehicle she was entitled

to take her purse with her and was not required by Belton [search incident to
                                           12

arrest of the driver] to leave it in the vehicle for the first officer to search.”); State

v. Boyd, 64 P.3d 419, 427 (Kan. 2003) (concluding the passenger’s Fourth

Amendment rights were violated when the officer directed the passenger to leave

her purse in the vehicle upon exiting so the officer could execute a consensual

search of the car and the officer lacked probable cause to believe the purse

contained illegal drugs).

       The State asserts that “[e]ven if Campbell’s purse was unconstitutionally

seized prior to the discovery of the marijuana, it ma[k]es little difference” because

“[o]nce marijuana was discovered, the deputies had probable cause to arrest

Campbell along with Nourie for possession of marijuana.” The State cites the

case of Maryland v. Pringle, 540 U.S. 366, 372 (2003), and claims it stands for

the proposition that when illegal drugs are found in a car, the officers have

probable cause to arrest all of the car’s occupants.           We first note that this

justification for the search of Campbell’s purse—search incident to arrest based

on the discovery of the marijuana—was not asserted by the State in its

resistance to the motion to suppress or at the hearing on the motion. Thus, this

asserted justification for searching Campbell’s purse is not preserved for our

review. Lamasters, 821 N.W.2d at 862 (“It is a fundamental doctrine of appellate

review that issues must ordinarily be both raised and decided by the district court

before we will decide them on appeal.” (citation omitted)). Even if error was

preserved on this claim, there are factual distinctions between Pringle and this

case that warrant a different conclusion.

       In Pringle, there was money found directly in front of Pringle in a glove

box, and cocaine was found behind the back-seat armrest, which was accessible
                                        13


to all three of the car’s occupants. 540 U.S. at 371–72. Upon questioning, all

three occupants failed to offer any information about the ownership of the

cocaine or money. Id. The Court then concluded it was

       an entirely reasonable inference from these facts that any or all
       three of the occupants had knowledge of, and exercised dominion
       and control over, the cocaine. Thus, a reasonable officer could
       conclude that there was probable cause to believe Pringle
       committed the crime of possession of cocaine, either solely or
       jointly.

Id. at 372.

       In this case, the deputies, during the inventory search of Nourie’s car,

discovered trace amounts of marijuana contained within a marked prescription

pill bottle located in the center console. Nourie admitted ownership of the pill

bottle as having once contained medication prescribed by his doctor due to an

injury, and he later admitted the pill bottle had at one time contained marijuana.

Based on these facts, we cannot conclude that the deputies had probable cause

to arrest Campbell, such that a subsequent search of her purse would have

occurred. Thus, even assuming such a claim had been preserved, we reject it.

IV. Conclusion.

       We conclude Campbell’s purse was illegally seized when the deputy

ordered her to place her purse back into the car as she was exiting. If the illegal

seizure had not occurred, Campbell would have been permitted to remove her

purse from the car and the purse would not have been a container in the vehicle

subject to search under the automobile exception when probable cause to search

later arose during the inventory search.     Therefore, the evidence discovered

during the search of her purse must be suppressed, and we reverse the district
                                         14


court’s ruling to the contrary. We remand this case to the district court for further

proceedings.

       REVERSED AND REMANDED.
