                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0012
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STACY JAMES LEVELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cedar County, Stuart P. Werling,

Judge.



      Stacy Levell appeals from his convictions following a trial on the minutes

for driving while barred and driving while license revoked. REVERSED.




      Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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DANILSON, Chief Judge.

       Stacy Levell appeals from his convictions following a trial on the minutes

for driving while barred as a habitual offender in violation of Iowa Code sections

321.560, .561, and .556 (2016), and driving while license revoked, in violation of

section 321J.21. Levell contends the district court improperly denied his motion

to suppress, arguing there was no reasonable suspicion justifying his seizure.

The State asserts Levell was not “seized” within the meaning of the federal and

state constitutions, and even if a seizure did occur, it was supported by

reasonable suspicion. We find there was no reasonable suspicion permitting

seizure under the facts of this case. We therefore conclude the district court

erred in denying the motion to suppress and reverse the convictions.

I. Background Facts & Proceedings.

       On April 1, 2016, State Trooper Robert Smith was traveling on the

interstate when he noticed that a vehicle coming up behind him slowed in speed

and faded back from his patrol car.        Trooper Smith reduced his speed, the

vehicle passed, and Trooper Smith ran a computer check on the vehicle’s license

plate. The check revealed the vehicle was registered to Brittney Johnson and

Melissa Levell and also automatically alerted to an arrest warrant on Stacy

Levell.1 When the vehicle pulled off the interstate into a rest area, Trooper Smith

followed and activated the patrol car’s emergency lights as the vehicle was

pulling into a parking stall.   Trooper Smith parked his patrol car next to the


1
 The license-plate check generated information about an arrest warrant for Stacy Levell
because even though the vehicle was not registered to Stacy Levell, it was the vehicle
he had been driving when he was originally arrested for the offense giving rise to the
arrest warrant.
                                         3


driver’s side of the vehicle, exited the patrol car, and spoke to the driver, who

stated he was Stacy Levell. Trooper Smith learned Levell had a revoked license

and was barred from driving.

       Levell filed a motion to suppress, arguing Trooper Smith did not have

reasonable suspicion to seize the vehicle in violation of the Fourth Amendment to

the United States Constitution and article I, section 8 of the Iowa Constitution.

After an evidentiary hearing, the motion was denied, and the case proceeded to

a trial on the minutes. Levell was found guilty of driving while barred and driving

while license revoked. Levell appeals.

II. Standard of Review.

       Because Levell argues the motion to suppress should have been granted

on constitutional grounds, our review is de novo. State v. Pals, 805 N.W.2d 767,

771 (Iowa 2011). We give weight to the district court’s fact findings, especially

respecting the credibility of the witnesses, but we are not bound by them. Id. On

de novo review, we make “an independent evaluation of the totality of the

circumstances as shown by the entire record.” State v. Palmer, 791 N.W.2d 840,

844 (Iowa 2010) (citations omitted). “We consider both the evidence introduced

at the suppression hearing as well as the evidence introduced at trial.” Id.

III. Analysis.

       Levell asserts the motion to suppress should have been granted because

he was unconstitutionally seized by Trooper Smith without reasonable suspicion.

The State maintains Levell was not “seized” under the facts of this case.

       1. Seizure. “The Fourth Amendment’s protection against unreasonable

intrusions on a person’s liberty arises when an officer seizes a person. A seizure
                                          4


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) (citations omitted). “Whether a ‘seizure’ occurred is determined by the

totality of the circumstances.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008).

       “The Supreme Court has long recognized that not all police contacts with

individuals are deemed seizures within the meaning of the Fourth Amendment.”

State v. Smith, 683 N.W.2d 542, 546 (Iowa 2004) (citation omitted). “[O]bjective

indices of police coercion must be present to convert an encounter between

police and citizens into a seizure.” Wilkes, 756 N.W.2d at 843. “Encounters with

the police remain consensual ‘[s]o long as a reasonable person would feel free to

disregard the police and go about his business.’” State v. Lowe, 812 N.W.2d

554, 570 (Iowa 2012) (alteration in original) (citation omitted).

       Here, Trooper Smith’s actions demonstrated authoritative behavior

necessary to establish seizure.       Our supreme court has held the use of

emergency lights may “invoke police authority and imply a police command to

stop and remain.” Wilkes, 756 N.W.2d at 844. “While we have recognized that

the use of emergency lights is not per se coercive, we have observed that

emergency lights, unlike ordinary headlights, can be coercive . . . .” White, 887

N.W.2d at 176.

       Although Levell pulled his vehicle off the interstate and parked at the rest

area of his own free will, Trooper Smith followed, activated his emergency lights,

parked next to Levell, exited his patrol car, and approached the driver’s side

window of Levell’s vehicle.     A reasonable person under these circumstances

would not believe they could disregard the trooper and go about their business.
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The minutes of testimony also acknowledge that the officer “activated his traffic

lights and initiated a traffic stop.”    We therefore find Levell was seized for

purposes of the Fourth Amendment.

       2. Reasonable Suspicion.         Because we conclude a seizure did occur

under these facts, we must address Levell’s contention the seizure was

unsupported by reasonable suspicion.

       “[P]olice may stop a moving automobile in the absence of probable cause

to investigate a reasonable suspicion that its occupants are involved in criminal

activity.” Pals, 805 N.W.2d at 774. Trooper Smith observed no traffic violation.

               “[R]easonable suspicion is based on an objective standard:
       whether the facts available to the officer at the time of the stop
       would lead a reasonable person to believe that the action taken by
       the officer was appropriate.” State v. Kinkead, 570 N.W.2d 97, 100
       (Iowa 1997). This determination is made “in light of the totality of
       the circumstances confronting the officer,” including specific,
       articulable facts and the rational inferences drawn from them. State
       v. Tague, 676 N.W.2d 197, 204 (Iowa 2004). The standard is more
       than a hunch or unparticularized suspicion, but less demanding
       than showing probable cause. State v. Walshire, 634 N.W.2d 625,
       626 (Iowa 2001); Kinkead, 570 N.W.2d at 100.

State v. King, 867 N.W.2d 106, 123 (Iowa 2015) (alteration in original).

       Levell asserts that because the vehicle was not registered to him and

Trooper Smith did not confirm Levell was driving before seizing the vehicle,

Trooper Smith did not have reasonable suspicion permitting seizure. We agree.

       At the hearing on the motion to suppress, Trooper Smith testified only that

there appeared to be two people in the vehicle as he pulled into the rest area.

Trooper Smith did not testify he saw the driver or the individuals in the vehicle as

they passed him on the interstate. Trooper Smith also did not testify that he

observed the gender of the driver (or of any individual in the vehicle) before he
                                         6


activated his lights, parked his patrol car next to the vehicle Levell was driving,

and exited the patrol car to speak to the driver. Although the arrest warrant

indicated to Trooper Smith that Levell sometimes drove the vehicle, he did not

have any reason to believe Levell was in the car.         In fact, the reasonable

inference was that the driver of the vehicle was one of the registered owners, and

there was no hunch or suspicion of criminal activity by the registered owners.

See State v. Vance, 790 N.W.2d 775, 781 (Iowa 2010) (“[I]t is reasonable for an

officer to infer the registered owner of the vehicle will do the vast amount of the

driving.”).

       The State asserts Levell’s hesitation to pass the patrol car on the

interstate and decision to stop at a rest area only fifteen minutes from home were

evasive tactics used by Levell to avoid interaction with Trooper Smith. The State

argues Trooper Smith’s observation of these tactics, coupled with the knowledge

Levell could be driving the vehicle, allowed him to form a reasonable suspicion

that Levell was the driver.

       We find these facts are insufficient to establish more than a hunch or

unparticularized suspicion that Levell could be driving or a passenger in the

vehicle. Slowing at the sight of a patrol car and stopping at a rest area fifteen

minutes from home are actions many drivers may take based on a number of

reasons entirely unrelated to criminal activity. We will not speculate on Levell’s

motivation for his actions in this case. Levell’s actions as observed by Trooper

Smith do not give rise to a reasonable suspicion of ongoing criminal activity.
                                        7


IV. Conclusion.

      On our review of the facts in this case, we find Trooper Smith did not have

the requisite reasonable suspicion to justify the seizure of Levell’s vehicle. We

therefore conclude the district court erred in denying the motion to suppress, and

we reverse the convictions.

      REVERSED.

      Tabor, J., concurs; McDonald, J., dissents.
                                        8


McDONALD, Judge (dissenting).

       I respectfully dissent. The trooper’s interaction with this citizen did not

violate this citizen’s right to be free from unreasonable search and seizure under

federal or state law.

       The Fourth Amendment provides “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. The text of article I,

section 8 of the Iowa Constitution is materially indistinguishable from the federal

constitutional provision. See State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).

The touchstone of either constitution is reasonableness under the circumstances

presented.    See Rodriguez v. United States, 135 S. Ct. 1609, 1617 (2015)

(Thomas, J. dissenting) (stating “the ultimate touchstone of the Fourth

Amendment is ‘reasonableness’” (quoting Brigham City v. Stuart, 547 U.S. 398,

403 (2006))); Kreps, 650 N.W.2d at 641.           As relevant here, the Fourth

Amendment and article I, section 8 are implicated when an officer seizes a

person. See State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004).

       Not every encounter between a law enforcement official and a citizen is of

constitutional dimension.    “Obviously, not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons. Only when the officer, by

means of physical force or show of authority, has in some way restrained the

liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968); see also United States v. Mendenhall, 446 U.S. 544,

553–54 (1980) (“Only when such restraint is imposed is there any foundation

whatever for invoking constitutional safeguards.     The purpose of the Fourth
                                         9


Amendment is not to eliminate all contact between the police and the citizenry,

but ‘to prevent arbitrary and oppressive interference by enforcement officials with

the privacy and personal security of individuals.’”) (quoting United States v.

Martinez-Fuerte, 428 U.S. 543, 554 (1976)). “[M]ere police questioning does not

constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991). For example,

“law enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking him

if he is willing to answer some questions, by putting questions to him if the

person is willing to listen, or by offering in evidence in a criminal prosecution his

voluntary answers to such questions.” Id. (quoting Florida v. Royer, 460 U.S.

491, 497 (1983) (plurality opinion)).

       The crucial test in determining whether a particular encounter rises to a

seizure is whether “the police conduct would ‘have communicated to a

reasonable person that he was not at liberty to ignore the police presence and go

about his business.’” Id. at 437; see also Mendenhall, 446 U.S. at 554 (holding

“a person has been ‘seized’ within the meaning of the Fourth Amendment only if,

in view of all of the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave”).         When conducting this

analysis, “[e]xamples of circumstances that might indicate a seizure, even where

the person did not attempt to leave, would be 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.” Mendenhall, 446 U.S.

at 554. “In the absence of some such evidence, otherwise inoffensive contact
                                        10


between a member of the public and the police cannot, as a matter of law,

amount to a seizure of that person.” Id. at 555.

       Under this controlling framework, the defendant was not seized as a

matter of law. Unlike the cases cited by the majority, here the officer did not

initiate a traffic stop. The defendant was already pulling into a parking stall when

the trooper pulled beside him. The encounter occurred in a public place. It

would be no different if the defendant were on foot and the officer pulled

alongside him. When the trooper exited the vehicle, the defendant already was

rolling down his window.     The trooper did not direct or otherwise signal the

defendant to roll the window down. The trooper was alone. The trooper did not

draw his weapon or otherwise show authority. The trooper did not raise his

voice. When the trooper spoke to the defendant, the trooper explained he was

looking for Stacy Levell. The defendant then admitted he was Stacy Levell. The

trooper’s statement was explanatory and not coercive. There is no evidence the

trooper raised his voice or used an assertive tone. In short, there is no factor

identified in Mendenhall that would support the conclusion this encounter was a

seizure.

       There are a host of similar cases supporting the conclusion this type of

police-citizen encounter does not rise to the level of a constitutional seizure.

See, e.g., United States v. Drayton, 536 U.S. 194, 204 (2002) (holding bus

passengers were not seized when officers boarded at rest stop and “[t]here was

no application of force, no intimidating movement, no overwhelming show of

force, no brandishing of weapons, no blocking of exits, no threat, no command,

not even an authoritative tone of voice” and concluding “[i]t is beyond question
                                       11


that had this encounter occurred on the street, it would be constitutional”);

Gregory v. Burnett, 577 Fed. Appx. 512, 517 (6th Cir. 2014) (holding there was

no constitutional impediment to an officer approaching an already stopped

vehicle and engaging in questioning); United States v. Clements, 522 F.3d 790,

794–95 (7th Cir. 2008) (finding no seizure where officers activated red and blue

lights before approaching parked vehicle at night); United States v. Barry, 394

F.3d 1070, 1074–75 (8th Cir. 2005) (holding the defendant was not seized where

officer tapped on window of parked vehicle); United States v. Baker, 290 F.3d

1276, 1277 (11th Cir. 2002) (holding no seizure where officer approached

already stopped vehicle, asked occupants to roll down window, and questioned

occupants); United States v. Gipp, 147 F.3d 680, 684–85 (8th Cir. 1998) (holding

a highway patrol officer can approach a parked vehicle on a frontage road

without offending the Fourth Amendment); United States v. Dockter, 58 F.3d

1284, 1287 (8th Cir. 1995) (holding that individuals “were not seized within the

meaning of the Fourth Amendment when [a sheriff’s deputy] pulled his vehicle

[directly] behind their parked car and activated his amber warning lights” and did

not ask coercive questions); United States v. Kim, 25 F.3d 1426, 1430 n.1 (9th

Cir. 1994) (recognizing other circuit courts “have consistently held that an

officer’s approach of a car parked in a public place does not constitute an

investigatory stop or higher echelon Fourth Amendment seizure”); United States

v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994) (“The fact that Troopers

Simone and Heady ‘followed’ Magee and Klinginsmith down the frontage road

does not constitute a ‘seizure.’ The troopers did not stop the Buick. Magee

did.”); Commonwealth v. Eckert, 728 N.E.2d 312, 316 (Mass. 2000) (concluding
                                        12


“that, by walking up to the defendant’s parked vehicle at the rest area, knocking

on the window, shining his flashlight inside and asking whether the defendant

was ‘all set,’ [a state trooper] did not engage in any conduct that requires

constitutional justification”); State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993)

(finding no seizure where officer activated flashing red lights before approaching

vehicle parked on highway shoulder at night); State v. Vohnoutka, 292 N.W.2d

756, 757 (Minn. 1980) (“[C]ourts generally have held that it does not by itself

constitute a seizure for an officer to simply walk up and talk to a person standing

in a public place or to a driver sitting in an already stopped car.”); City of Grand

Forks v. Zejdlik, 551 N.W.2d 772, 774–75 (N.D. 1996) (“[A] policeman’s

approach to a parked vehicle is not a seizure if the officer inquires of the

occupant in a conversational manner, does not order the person to do

something, and does not demand a response.”).

      I conclude this case is materially indistinguishable from the above-cited

cases. No seizure occurred under the facts presented. I respectfully dissent.
