                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2164
                               Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN SEAN MORAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.



      The    defendant      appeals   his conviction for driving   while   barred.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

       Following a trial on the minutes of testimony, Brian Moran was convicted

of driving while barred, in violation of Iowa Code sections 321.560 and 321.561

(2015), and sentenced to two days’ incarceration in the county jail. He appeals

his conviction, contending the district court erred in denying his motion to

suppress evidence obtained after an allegedly illegal traffic stop.

       We review claims of constitutional violations de novo in light of the totality

of the circumstances. See State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001).

In doing so, we examine the entire record, including evidence presented at the

suppression hearing. See State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003).

Although our review is de novo, we do afford the decision of the district court

deference for policy reasons. See State v. Naujoks, 637 N.W.2d 101, 106 (Iowa

2001); In re P.C., No. 16-0893, 2016 WL 4379580, at *2 (Iowa Ct. App. Aug. 17,

2016) (stating appellate courts should exercise “de novo review with deference”

in “recognition of the appellate court’s limited function of maintaining the

uniformity of legal doctrine; recognition of the district court’s more intimate

knowledge of and familiarity with the parties, the lawyers, and the facts of a case;

and recognition there are often undercurrents in a case—not of record and

available for appellate review—the district court does and should take into

account when making a decision”).

       The Fourth Amendment to the United States Constitution 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   “textual   touchstone   of   the   Fourth     Amendment    is
                                          3

reasonableness.” State v. Lewis, 675 N.W.2d 516, 529 (Iowa 2004). 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 Fourth

Amendment is implicated when an officer seizes a person.               See State v.

Reinders, 690 N.W.2d 78, 82 (Iowa 2004).           During traffic stops, temporary

detention constitutes a seizure of persons and therefore must be reasonable

under the circumstances. See Whren v. United States, 517 U.S. 806, 809–10

(1996).

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

legality of the traffic stop.   See State v. Tague, 676 N.W.2d 197, 204 (Iowa

2004). 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.”

State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002) (citing United States v. Arvizu,

534 U.S. 266, 273 (2002)). This is an objective test. See id. at 641–42. 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. Sokolow, 490 U.S. 1, 7 (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.

       After eleven o’clock at night, an off-duty police officer serving the cities of

Boone and Ogden, who resides in Ogden, contacted an on-duty police officer in
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Ogden to report an incident. A motorist had driven a Buick slowly down the

street, pulled into the officer’s front yard—the grass and not the paved

driveway—and shined the vehicle’s headlights into the officer’s bedroom window

for approximately fifteen seconds.    The vehicle slowly drove away but then

returned maintaining a slow rate of speed. The officer thought it might have been

a threat or an act of harassment because of his status as a police officer. The

Ogden officer responded quickly, located a vehicle matching the description in

the area, and executed a stop of the vehicle to investigate further. The off-duty

officer drove to the location of the traffic stop and confirmed it was the same

vehicle he had observed. We now know the driver of the vehicle was Moran.

The Ogden officer requested Moran’s license and learned Moran was driving

while barred. The Ogden officer arrested Moran.

      We conclude the traffic stop was justified.          “The purpose of an

investigatory stop is to allow a police officer to confirm or dispel suspicions of

criminal activity through reasonable questioning.” Kreps, 650 N.W.2d at 641.

The conduct reported was sufficient to give rise to reasonable suspicion the

driver was impaired or may have intended to harass the officer within the

meaning of Iowa Code section 708.7. See State v. Reynolds, 670 N.W.2d 405,

410 (Iowa 2003) (“The closeness of the defendant’s vehicle to the victim’s car

and home satisfies the physical proximity alternative of the personal contact

requirement.”).   Moran argues there was an innocent explanation for his

conduct—he was lost and turned around. That may well have been true, but it is

largely immaterial to the motion to suppress.
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         [P]olice officers are not required to rule out the possibility of
         innocent behavior before initiating a brief stop. . . . [S]uspicious
         conduct by its very nature is ambiguous, and the principle function
         of the investigative stop is to quickly resolve that ambiguity.
         Therefore, if any reasonable inference of wrongful conduct can be
         objectively discerned, notwithstanding the existence of other
         innocent inferences that could be drawn, the officers have the right
         to temporarily detain the individual for the purpose of inquiry.

Kreps, 650 N.W.2d at 643 (quoting State v. Anderson, 454 N.W.2d 763, 766

(Wis. 1990).

         Moran contends the off-duty officer’s description of the vehicle was

insufficient to identify Moran’s vehicle. We disagree. Moran’s vehicle matched

the make of the vehicle the off-duty officer observed. The officers testified the

stop was executed in a small town in a low traffic area at night when there would

be few cars on the road. See, e.g., State v. Williams, No. 15-1110, 2016 WL

3002749, at *2 (Iowa Ct. App. May 25, 2016) (concluding description of the make

and color of the vehicle was sufficient to identify the vehicle for purposes of traffic

stop).    The stop was executed in temporal proximity of the telephone call,

increasing the likelihood the stopped car was the observed car.

         For the foregoing reasons, the district court did not err in denying the

defendant’s motion to suppress evidence. We affirm the conviction.

         AFFIRMED.
