                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1546
                             Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AARON LEWIS BOHL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Defendant    appeals    his   conviction   for   driving   under   revocation.

AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MCDONALD, Judge.

       Following a trial on the minutes, Aaron Bohl was convicted of driving

under revocation in violation of Iowa Code section 321J.21 (2015). The issue on

appeal is whether the district court erred in denying the defendant’s motion to

suppress evidence obtained by a traffic stop allegedly made in violation of the

defendant’s right to be free from unreasonable searches and seizures under the

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

Iowa Constitution.

       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 Fourth Amendment

is applicable to state actors by incorporation via the Fourteenth Amendment.

See Mapp v. Ohio, 367 U.S. 643, 660 (1961). The touchstone of the Fourth

Amendment is reasonableness.        See Rodriguez v. United States, 135 S. Ct.

1609, 1617 (2015) (Thomas, J. dissenting) (stating the text of the Fourth

Amendment “indicates, and we have repeatedly confirmed, ‘the ultimate

touchstone of the Fourth Amendment is reasonableness’” (quoting Brigham City

v. Stuart, 547 U.S. 398, 403 (2006))); State v. Kreps, 650 N.W.2d 636, 640 (Iowa

2002). A traffic stop is a “seizure” within the meaning of the Fourth Amendment.

See Whren v. United States, 517 U.S. 806, 809–10 (1996). A traffic stop is

constitutionally reasonable when made “for investigatory purposes when the

officer has a reasonable, articulable suspicion that a criminal act has occurred, is

occurring, or is about to occur.” State v. Vance, 790 N.W.2d 775, 780 (Iowa

2010) (citing Illinois v. Wardlow, 528 U.S. 119, 123 (2000); State v. Kinkead, 570
                                        3

N.W.2d 97, 100 (Iowa 1997)); see also Terry v. Ohio, 392 U.S. 1, 20 (1968). The

principal purpose of an investigatory stop is to “resolve the ambiguity as to

whether criminal activity is afoot.” State v. Richardson, 501 N.W.2d 495, 497

(Iowa 1993).

      The text of article I, section 8 of the Iowa Constitution is materially

indistinguishable from the federal constitutional provision. Nonetheless, “while

United States Supreme Court cases are entitled to respectful consideration,

[Iowa courts] will engage in independent analysis of the content of [Iowa’s]

search and seizure provisions.” State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010). Depending upon the particular issue, our precedents interpreting article I,

section 8 may provide greater or lesser protection than cases interpreting the

Fourth Amendment.      While it is undoubtedly true that “the Supreme Court’s

jurisprudence regarding the freedom from unreasonable searches and seizures

under the Fourth Amendment” is a floor and not a ceiling due to the operation of

the Supremacy Clause, State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013), it is

also undoubtedly true that the maxim applies only where the defendant asserts a

claim arising under the Fourth and Fourteenth Amendments.

      The right question, is not whether a state’s guarantee is the same
      as or broader than its federal counterpart as interpreted by the
      Supreme Court. The right question is what the state’s guarantee
      means and how it applies to the case at hand. The answer may
      turn out the same as it would under federal law. The state’s law
      may prove to be more protective than federal law. The state law
      also may be less protective. In that case the court must go on to
      decide the claim under federal law, assuming it has been raised.

Hulit v. State, 982 S.W.2d 431, 437 n.11 (Tex. Crim. App. 1998) (quoting Hans A

Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165,
                                          4


179 (1984)). Where, as here, a “party raises issues under the Iowa Constitution

and the Federal Constitution, but does not suggest a different standard be

applied under the Iowa Constitution, we generally apply the federal standard.”

State v. Edouard, 854 N.W.2d 421, 452 (Iowa 2014) (Appel, J., concurring

specially).

       We review constitutional claims de novo. See Vance, 790 N.W.2d at 780;

State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004); Kreps, 650 N.W.2d at 640. It

is the State’s burden to prove by a preponderance of the evidence the legality of

the traffic stop. See Tague, 676 N.W.2d at 204. To determine if the traffic stop

was constitutionally reasonable, we look to the “totality of the circumstances

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

time the decision to stop is made.” Kreps, 650 N.W.2d at 642 (citing United

States v. Arvizu, 534 U.S. 266, 273 (2002)). This is an objective test. See id. at

641–42 (“The circumstances under which the officer acted must be viewed

‘through the eyes of a reasonable and cautious police officer on the scene,

guided by his experience and training.’” (quoting United States v. Hall, 525 F.2d

857, 859 (D.C. Cir. 1976))). A mere hunch will not suffice, but the officer may

make the traffic stop based on “considerably less” evidence than that required to

establish probable cause. See United States v. Soholow, 490 U.S. 1, 8 (1989);

Kreps, 650 N.W.2d at 642 (“The evidence justifying the stop need not rise to the

level of probable cause.”). If the officer did not have reasonable suspicion to

make the investigatory stop, then the stop violated the defendant’s rights and “all

evidence flowing from the stop is inadmissible.” Tague, 676 N.W.2d at 206.
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      At approximately one o’clock in the morning on June 27, 2015, an Iowa

State University Police Department officer on routine patrol observed a vehicle

pass by him. The officer testified the driver “looked at [the officer] in a manner

which showed concern.”        The officer testified he observed a white male

approximately twenty to thirty years of age driving the vehicle. As the officer

followed the vehicle, the driver traveled under the speed limit in an area where

people drive “typically very fast.” The officer ran a report on the vehicle. The

registered owner of the vehicle was John Bohl, now known to be the defendant’s

father, approximately sixty years of age. The officer did not believe the driver to

be John Bohl because the driver he had observed was between twenty to thirty

years of age. Dispatch reported the vehicle had been involved in an OWI-related

incident in March 2015. Dispatch reported Aaron Bohl had his license revoked

for refusing OWI testing while operating the vehicle at issue. Dispatch provided a

description of Aaron Bohl, which matched the description of the driver the officer

had observed. The officer testified, based on his experience, people in the area

drove “vehicles registered to their parents while they’re living away from home.”

The officer believed the driver to be Aaron Bohl and initiated a traffic stop of the

vehicle. The driver was, in fact, Aaron Bohl, and he was, in fact, operating a

motor vehicle while his driver’s license was revoked.

      On do novo review, we conclude the officer had reasonable suspicion to

initiate the traffic stop—specifically, a reasonable suspicion the defendant was

operating the observed vehicle while his driver’s license was revoked.         The

officer observed the defendant act concerned and drive unusually slow upon

seeing the marked patrol vehicle. Officers are able to consider the defendant’s
                                        6

behavior when determining if a stop would be reasonable.               See, e.g.,

Richardson, 501 N.W.2d at 497; State v. Donnell, 239 N.W.2d 575, 578 (Iowa

1976) (considering the defendant driving at a slow speed as one of several

factors leading to reasonable suspicion); State v. Corbett, 758 N.W.2d 237, 241

(Iowa Ct. App. 2008) (“A change in an individual’s activity or conduct because

they become aware of police presence is not simply going about one’s business”

and therefore “a defendant’s reaction to police presence is a factor in a Terry

analysis.”). The vehicle was registered to John Bohl, approximately sixty years

of age, but the driver of the vehicle was twenty to thirty years of age and clearly

not the registered owner. The defendant, who has the same last name as the

registered owner, had his license revoked earlier in the year arising out of an

OWI-related incident in the same vehicle. See State v. Rendon, No. A05-109,

2006 WL 278929, at *2 (Minn. Ct. App. Feb. 7, 2006) (noting reasonable

assumption that family members may use each other’s vehicles). The driver of

the vehicle matched Aaron Bohl’s description. See State v. Moffit, No. 12-1326,

2013 WL 3855691, at *2 (Iowa Ct. App. July 24, 2013) (concluding officers can

rely on description provided by dispatch). Finally, in the officer’s experience, it

was not unusual for students to drive their parents’ vehicles while attending

university in Ames. See Arvizu, 534 U.S. at 273; Corbett, 758 N.W.2d at 240

(providing an officer is allowed to draw upon his or her past experience and

training “‘to make inferences from and deductions about the cumulative

information available to [him or her] that might well elude an untrained person’”

(quoting United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003))).          A

reasonable officer could infer from the totality of these facts that Aaron Bohl was
                                         7

operating the observed vehicle while his license was revoked. See Vance, 790

N.W.2d at 782 (prohibiting a stopping officer from relying on inferences of a

driver’s identity and requiring the officer to verify the identity of a driver would

“seriously limit an officer’s ability to investigate suspension [or revocation]

violations” and would “not only place the stopping officer in danger but also the

traveling public in general”).

       The district court did not err in denying the defendant’s motion to

suppress. His conviction is affirmed.

       AFFIRMED.
