                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0516
                               Filed June 11, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CODY DEAN RADKE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Gregory D. Brant

(suppression) and Carol L. Coppola (trial), Judges.



      Cody D. Radke appeals his convictions for possession of a controlled

substance and theft in the third degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and Joseph Crisp, Thomas Desio,

and Kevin Hathaway, Assistant County Attorneys, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.

       Cody D. Radke appeals his convictions for possession of a controlled

substance second offense and theft in the third degree. Radke claims the district

court erred in denying his motion to suppress evidence as law enforcement

lacked reasonable suspicion to seize him.          We find law enforcement had

reasonable suspicion Radke was involved in criminal activity because of Radke’s

presence in a vehicle thought to be delivering stolen goods, Radke matched the

description of an individual who had stolen the items, and because of Radke’s

actions when exiting the vehicle.      Having reasonable suspicion, the officer’s

conduct in seizing Radke was justified. We affirm.

I.     Background Facts and Proceedings

       Codey Radke was convicted of possession of a controlled substance 1 and

third-degree theft following a trial based upon the minutes of testimony.

       On August 27, 2012, Ankeny police officers arranged to meet Casey

Porter in the parking lot of a Des Moines convenience store. Police contacted

Porter, via the internet, as they suspected she possessed property that had

recently been stolen in a violent home invasion burglary resulting in injuries.2

Based upon statements of the victim’s neighbors, the police believed at least

three people may have been involved, including one matching Porter’s

description.


1
 Enhanced to an aggravated misdemeanor.
2
 Porter had placed an advertisement on Craigslist to sell a ring that had been stolen
during the burglary. The victim of the burglary found the advertisement and alerted
police, who contacted Porter and arranged to meet her to purchase the ring. The victim
advised law enforcement that he had been threatened with a seven-inch knife during the
burglary.
                                        3


      At the agreed upon time, Porter arrived at the convenience store in a

vehicle matching the description of the vehicle used in the burglary. At least one

man, another woman, and two children, were also in the vehicle with Porter. At

the convenience store, Radke, who also matched the description of one of the

burglars, exited the vehicle and retrieved a backpack from the trunk. Police

officers immediately surrounded the vehicle with weapons drawn and secured

each individual, moving them to separate areas of the parking lot. Radke was

handcuffed, given his Miranda rights, and asked if there was anything illegal in

the backpack. Radke indicated there was drug paraphernalia in the backpack

and freely consented to a search. Drug paraphernalia containing drug residue

and stolen jewelry was located.

      Radke filed a motion to suppress claiming police lacked probable cause to

seize him, and the fruits of the search should be suppressed as the result of the

illegal stop and seizure. In its ruling, the district court did not rule on whether

probable cause existed for the stop, but instead found police had reasonable

suspicion to seize Radke. Radke did not request any further ruling on the issue

of probable cause.

II.   Standard of Review

      Because Radke’s motion to suppress raises constitutional issues, we

review the district court’s ruling de novo. See State v. Kern, 831 N.W.2d 149,

164 (Iowa 2013).
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III.   Discussion

       Radke claims the officer did not have reasonable suspicion to seize him,

which led the police to find drug paraphernalia containing drug residue.3 The

State contends there were specific and articulable facts relied upon by police

when Radke was seized.

       “Searches and seizures conducted without a warrant are per se

unreasonable unless they fall within one of the exceptions to the Fourth

Amendment’s warrant requirement.” State v. Bradford, 620 N.W.2d 503, 506

(Iowa 2000).    One such exception is a Terry stop.        Id.   Our supreme court

regularly upholds searches based upon the Terry stop exception.              State v.

Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). According to Terry v. Ohio, 392 U.S.

1, 29–30 (1968):


       [W]here a police officer observes unusual conduct which leads him
       reasonably to conclude in light of his experience that criminal
       activity may be afoot and that the persons with whom he is dealing
       may be armed and presently dangerous . . . he is entitled for the
       protection of himself and others in the area to conduct a carefully
       limited search of the outer clothing of such persons in an attempt to
       discover weapons which might be used to assault him. Such a
       search is a reasonable search under the Fourth Amendment . . . .

We examine this type of reasonable suspicion under an objective standard,

asking whether the “facts available to the officer at the time of the stop would

lead a reasonable person to believe the action taken by the officer was

appropriate.” Kinkead, 570 N.W.2d at 100. The officer must have more than a



3
 In his motion to suppress, Radke argued the seizure was not supported by probable
cause. The district court did not rule on that basis, but instead applied a reasonable
suspicion standard. On appeal, Radke only raises the issue of reasonable suspicion.
                                         5


hunch, but need not have proof of wrongdoing that rises to a preponderance of

the evidence. Id.

       On the night in question, Radke arrived under suspicious circumstances.

He arrived in a vehicle matching the description of a vehicle recently used in a

violent crime. The vehicle arrived as part of a law enforcement operation, where

police set up a meeting with someone attempting to sell stolen property taken

during the crime. When the vehicle stopped, Radke, who matched an earlier

description of one of the perpetrators of the burglary, exited the car and retrieved

a backpack from the trunk. Radke’s movements could be consistent with being a

part of the planned sale of stolen goods or, considering the violent nature of the

burglary, it was reasonable for law enforcement to suspect Radke was involved

in ongoing criminal conduct that may have placed them in danger.

       Radke claims a person’s “mere propinquity to others independently

suspected of criminal activity does not . . . give rise to probable cause.” Ybarra v.

Illinois, 444 U.S. 85, 91 (1979).        “Ybarra, however, does not hold that

companionship is irrelevant to the determination of . . . reasonable suspicion.”

United States v. Silva, 957 F.2d 157, 161 (5th Cir. 1992). The seizure of Radke

was not based upon his mere presence with others suspected of wrongdoing.

He also exited the vehicle and retrieved a backpack from the trunk of the car, an

act   properly   considered    suspicious    because    of   the   other   attendant

circumstances.
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       The seizure of Radke was supported by reasonable suspicion.

Accordingly, the ruling of the district court is affirmed.

       AFFIRMED.
