                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0185
                            Filed December 23, 2015


IN THE INTEREST OF D.K.,
Minor Child,

D.K., Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.




      A juvenile appeals following the denial of his motion to suppress evidence

seized without a warrant during a pat-down search of his person. AFFIRMED.




      Joey T. Hoover of Hoover Law Firm, P.L.L.C., Winterset, for appellant.

      Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant

Attorney General, for appellee State.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

          The parties stipulated to the following facts.1

                  On or about September 13, 2014, the manager of a
          McDonalds called 911 around 10:00 p.m. after a large group of
          young men began fighting in the lobby of the store. The manager
          was simultaneously watching several views of the store’s
          surveillance cameras. Another employee, who had been in the
          front of the store, directly watched the group of individuals. This
          employee came into the manager’s office and pointed to the child in
          interest, D.K., who was in the surveillance video, and stated that
          the child in interest had a gun. The manager relayed the
          information as well as a description of the child to the 911
          dispatcher. The child was described as wearing a black hoodie and
          khaki pants.
                  Officer Wilson arrived on the scene. The officer observed a
          large group of people matching the description provided to the Des
          Moines Police dispatcher. The officer further saw a young male at
          the counter matching the description provided by the manager.
          Officer Wilson and another backup officer entered the store. Officer
          Wilson directly approached the child in interest, patted him down,
          and located a handgun in the child’s waistband.
                  The manager informed the officer the male individuals were
          present at the store to fight an employee. The manager said the
          male individuals were yelling about someone “shooting bullets.”
          The gun that was found on the child in interest’s person was an
          H & R 929 revolver with nine .22 caliber bullets.

It is also undisputed that the officer did not have a warrant when he patted down

the juvenile.

          The juvenile filed a motion to suppress, among other things, the gun

seized by the officer following the pat-down. The juvenile argued the officer had

no right to search him because he did not have a warrant and asserted none of

the exceptions to the warrant requirement were applicable under the facts of the

case. The State resisted, and following a hearing, the juvenile court entered its

order denying in the juvenile’s motion on this issue. The court found the facts of


1
    We have lightly, but non-substantively, edited the stipulation for clarity.
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the case supported a search and pat-down as authorized in Terry v. Ohio, 392

U.S. 1, 30 (1968), explaining:

       The officer was not relying on an anonymous tip, as argued by the
       child, but a report of criminal activity that [the manager] had directly
       viewed. During the reporting of the group’s disorderly or fighting
       conduct, the reporter was further informed the child, who he
       described, had a gun. This information was corroborated by [the
       officer’s] own observations upon arrival at the scene. The court
       finds the warrantless search was appropriate and does not
       suppress the officer’s finding of the weapon on the child’s person.

       The juvenile now appeals, arguing the court erred in so finding.

Specifically, he asserts that, “[l]ooking at the totality of the facts in this case in the

position of a reasonable ofﬁcer,” the court should have granted his motion

because the officer’s pat-down “was based on a mere suspicion that the

[j]uvenile was the person who was reported as possibly having a weapon” and

therefore did not fall within one of the warrant exceptions.2 We disagree.

       We review determinations of whether to suppress evidence obtained in

violation of constitutional guarantees de novo. State v. Tyler, 867 N.W.2d 136,

152 (Iowa 2015). This review requires us to make an “independent evaluation of

the totality of the circumstances as shown by the entire record,” including the

evidence presented at the suppression hearing. See id. As the State notes,

though our review is de novo, we “give deference to the district court’s fact

findings due to its opportunity to assess the credibility of witnesses, but we are

not bound by those findings.” Id.

2
  The State points out that although the juvenile referenced the Iowa Constitution in the
argument heading of his brief, he did not make any specific argument concerning that
constitution, nor did he suggest a framework under the state constitution different from
that under the United States Constitution. Consequently, “we apply the general federal
framework in analyzing the issue.” See In re Det. of Matlock, 860 N.W.2d 898, 903
(Iowa 2015).
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      The Fourth Amendment to the United States Constitution, applicable to

state actors by incorporation through the Fourteenth 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; see also State v. Baldon, 829 N.W.2d 785, 812-14 (Iowa 2013)

(discussing the history of the incorporation of the bill of rights through the Due

Process Clause).       Although warrantless searches are virtually per se

unreasonable, see Baldon, 829 N.W.2d at 791, the Supreme Court has

recognized “a narrowly drawn authority to permit a reasonable search for

weapons for the protection of the police officer, 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.” Terry, 392 U.S. at 24.

In conducting a pat down for officer safety, the officer “need not be absolutely

certain that the individual is armed; the 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.” Id. at 27.

      On our de novo review, we agree with the juvenile court that the State

established the officer had reason to believe his safety was in danger.        The

officer was responding to a report of a fight breaking out in a public, popular

restaurant, and there was reason to believe a specific person, wearing a black

hoodie and khakis, was armed with a gun. It was the store’s manager that called

911 and directly relayed what he personally observed, as well as the real-time

information given to him by his own employee, and he testified as to that

information. Though the employee did not testify at the suppression hearing, she
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was not anonymous. She was a person readily identified by the manager, and a

person available as a witness.      That she did not testify does not render the

information she gave the manager, who in turn directly relayed that information to

dispatch, per se unreliable or incredible.

       Having watched the video, there is only one patron in the video wearing

khaki pants. The video shows the officer, upon entering the store, immediately

went to the juvenile wearing a black hoodie and khaki pants and conducted a

pat-down. It is clear the pat-down was done for safety reasons and was not as a

pretext to discover evidence.

       Given the information the officer had going into the store, it is clear a

reasonably prudent person in the circumstances would be warranted in the belief

that his safety or that of others was in danger. Consequently, we agree with the

juvenile court that the pat-down was justified and the gun discovered therein

admissible. Accordingly, we affirm the court’s denial of the motion to suppress.

       AFFIRMED.
