                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1333
                             Filed October 12, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW AUGUST THIEL,
     Defendant-Appellant.
_______________________________________________________________

      Appeal from the Iowa District Court for Polk County, Kevin A. Parker,

District Associate Judge.



      Defendant appeals his conviction for operating while intoxicated, second

offense. AFFIRMED.




      Nathan A. Russell of Elveson Vasey Law Firm, Des Moines, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

      Matthew Thiel appeals his conviction for operating while intoxicated,

second offense.    We find Thiel has not preserved error on his claim of a

prolonged warrantless detention without probable cause. Even if error had been

preserved, the articulable facts and circumstances justified a brief detention of

Thiel for further investigation of whether he had been operating while intoxicated.

We affirm the court’s decision denying Thiel’s motion to suppress and affirm his

conviction.

      I.      Background Facts & Proceedings

      On August 8, 2014, at about 11:00 p.m., Thiel was driving his motorcycle

on East Grand Avenue when an SUV backed out of a driveway directly into his

path and he collided with it.    The incident was observed by Officers Rodell

Nydam and Scott Neely, who were on foot patrol at the Iowa State Fair. In

speaking to Thiel, the officers noticed he appeared to be intoxicated.        Thiel

received abrasions to his arm and broke his thumb; he did not hit his head.

      Officer Andrew Wierck responded to the scene in a patrol car. Officer

Wierck noticed Thiel had bloodshot, watery eyes; slurred speech; unsteady

balance; and an odor of an alcoholic beverage. Thiel stated he “had a couple of

beers at the fair” earlier in the evening.   Thiel refused to participate in field

sobriety tests or take a preliminary breath test (PBT). He was arrested and

transported to the police station.     Thiel was charged with operating while

intoxicated, second offense, in violation of Iowa Code section 321J.2 (2013), an

aggravated misdemeanor.
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       Thiel filed a motion to suppress, claiming the invocation of implied consent

was without probable cause or reasonable suspicion.          The court denied the

motion to suppress, finding due to “[t]he defendant’s driving (struck a vehicle –

slow reaction time), odor of alcohol, bloodshot and watery eyes, unsteady

balance, and admission of beer consumption, Officer Wierck had cause to invoke

implied consent.” The case proceeded to a jury trial, and Thiel was found guilty.

       Thiel now appeals the ruling on his motion to suppress.

       II.    Standard of Review

       The standard of review of the constitutional issues raised in a motion to

suppress is de novo. See State v. Breuer, 808 N.W.2d 195, 197 (Iowa 2012).

       III.   Discussion

       Thiel claims the court should have granted his motion to suppress

because the State failed to tender specific and articulable facts supporting his

prolonged warrantless detention. He states the court improperly considered only

whether Officer Wierck had probable cause to invoke implied consent. Thiel

states he was detained for about fifteen minutes1 while Officers Nydam and

Neely waited for Officer Wierck to arrive at the scene and claims this detention

was without probable cause.

       The State claims Thiel failed to preserve error on his argument regarding

the detention time as it was not raised at the suppression hearing.           At the

hearing, the prosecutor stated, “the only issue at play here is whether or not


1
  As Officers Nydam and Neely were on foot patrol and did not have the necessary
equipment and documents to conduct the investigation, so Officer Wierck was called.
Also, Officers Nydam and Neely were required to return to traffic direction and other
tasks related to foot patrol at the fair.
                                          4


Officer Wierck had reasonable grounds to invoke a PBT and invoke implied

consent.” Defense counsel agreed, stating, “That’s correct, Your Honor.” The

court’s ruling on the motion to suppress does not address the time Thiel waited

until Officer Wierck came to the scene. Thiel did not file a motion pursuant to

Iowa Rule of Civil Procedure 1.904(2).

       We conclude Thiel has not preserved error on his claim of a prolonged

warrantless detention without probable cause.        See State v. Jefferson, 574

N.W.2d 268, 278 (Iowa 1997) (noting “issues must be presented to and passed

upon by the district court before they can be raised on appeal”). We do not

address issues where error has not been preserved.            State v. Lawler, 571

N.W.2d 486, 491 (Iowa 1997).

       Furthermore, even if error had been preserved, “reasonable suspicion of a

crime allows a peace officer to stop and briefly detain a person to conduct a

further investigation.” State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). At the

trial, Officer Nydam testified Thiel smelled of alcohol and had bloodshot eyes.

Officer Neely stated Thiel was unsteady, smelled like he had been drinking an

alcoholic beverage, and was slurring his words.        Both officers testified Thiel

appeared to be intoxicated. We conclude the articulable facts and circumstances

justified a brief detention of Thiel for further investigation of whether he had been

operating while intoxicated. See id.

       We affirm the decision of the district court denying Thiel’s motion to

suppress and affirm Thiel’s conviction.

       AFFIRMED.
