               IN THE SUPREME COURT OF IOWA
                                 No. 14–0656

                         Filed February 12, 2016

                    Amended March 9, 2016 (revised)

STATE OF IOWA,

      Appellee,

vs.

STEPHEN SCOTT PRUSHA,

      Appellant.


      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Marshall County, Kim M.

Riley, District Associate Judge.



      A criminal defendant seeks further review of a court of appeals

decision affirming his conviction for methamphetamine possession,

contending police obtained evidence through a warrantless search that

violated his constitutional right to be free from unreasonable searches.
COURT OF APPEALS DECISION AND DISTRICT COURT JUDGMENT

AFFIRMED.



      Darrell G. Meyer, Marshalltown, for appellant.



      Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Jennifer Miller, County Attorney, and Ben Stansberry, Assistant

County Attorney, for appellee.
                                2

      Alan R. Ostergren, Muscatine, for amicus curiae Iowa County

Attorneys Association.
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HECHT, Justice.

      Stephen Prusha contends we should now decide the question we

“reserved for another day” in State v. Pals, 805 N.W.2d 767, 782 (Iowa

2011): whether article I, section 8 of the Iowa Constitution requires police

to “advise an individual of his or her right to decline to consent to a

search.” However, we decline Prusha’s invitation and continue to leave

the consent advisory question open because we conclude Prusha did not

raise the Iowa Constitution when he challenged the search before the

district court. We therefore evaluate the search in this case solely under

the Fourth Amendment, and we conclude Prusha voluntarily consented

to the search under the totality of the circumstances presented here.

      I. Background Facts & Proceedings.

      Just after 1:10 a.m. on April 5, 2013, while on patrol in a rural

area about four miles east of Marshalltown, Marshall County Deputy

Sheriff John Shaver observed a pedestrian walking on the side of the

road. Deputy Shaver found it unusual to see a pedestrian at that time of

night in that area, so he pulled his police cruiser to the side of the road

in front of the pedestrian.        He activated the vehicle’s rear amber

directional lights but not its red and blue emergency lights.       Deputy

Shaver later testified he pulled over because he “wanted to make sure

[the pedestrian] was okay, make sure he hadn’t been in an automobile

accident, . . . [gone] in the ditch, anything like that.”

      The pedestrian removed his billfold from his pocket to retrieve his

identification. As Deputy Shaver exited the car and approached him, the

pedestrian kept walking toward the cruiser and proactively handed

Deputy Shaver his identification. The identification revealed Prusha was

the pedestrian, and Deputy Shaver asked Prusha why he was walking

along the road at such a late hour.         Prusha responded that he was
                                          4

walking to his home in Marshalltown after having an argument with his

girlfriend.    Deputy Shaver later testified Prusha appeared calm and

responsive during their interaction and did not appear to be intoxicated

or otherwise impaired.

       Deputy Shaver relayed Prusha’s license information to a dispatcher

to check for outstanding warrants. There were no outstanding warrants,

but the dispatcher advised Deputy Shaver that Prusha was “flagged”

because he “was known to interfere and had a history of illegal drug

use”—although he had no drug arrests or other criminal history involving

drugs.    The dispatcher provided no additional information about why

Prusha was flagged.

       Although he had confirmed that Prusha did not need assistance or

emergency aid, Deputy Shaver acted on the information his dispatcher

provided. Deputy Shaver asked Prusha if he possessed any weapons or

drugs. Although Prusha denied possession of such items, Deputy Shaver

asked Prusha if he would consent to a search of his person.                  Deputy

Shaver did not tell Prusha that he could refuse consent and was free to

go, but Deputy Shaver testified, and his report states, that Prusha

consented to a search. 1

       Deputy Shaver asked Prusha to walk toward the patrol car and

Prusha agreed to do so. However, Prusha then reached his hand into his

pocket. Deputy Shaver quickly grabbed Prusha’s wrist to keep his hand

inside the pocket because he thought Prusha might be retrieving a

weapon.       Prusha said he would show Deputy Shaver what was in his

pocket and pulled his hand out slowly to reveal a glass pipe containing a

       1Neither Deputy Shaver’s report nor his testimony details Prusha’s exact words
or gestures responsive to the request for consent to search. Prusha did not testify at
the suppression hearing.
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powdery residue. Deputy Shaver confiscated the pipe, arrested Prusha,

and handcuffed him.     Deputy Shaver then searched Prusha’s pockets

and discovered a plastic bag containing about a half gram of

methamphetamine.

       The State charged Prusha with possessing methamphetamine. See

Iowa Code § 124.401(5) (2013).             Prusha moved to suppress any

statements or confessions he gave and any evidence obtained through a

warrantless search. The district court denied the motion. It concluded

that under the “totality of the circumstances” approach established in

Schneckloth v. Bustamonte, 412 U.S. 218, 248–49, 93 S. Ct. 2041, 2059,

36 L. Ed. 2d 854, 875 (1973), Prusha voluntarily consented to the

search.

       After the district court denied his motion to suppress, Prusha

agreed to a bench trial on the minutes of testimony. The court found

Prusha guilty.      Prusha appealed his conviction, contending the

warrantless search violated both the Federal and Iowa Constitutions. We

transferred the case to the court of appeals. The court of appeals upheld

the warrantless search and affirmed Prusha’s conviction. Prusha sought,

and we granted, further review. As in all cases implicating constitutional

protections, our review is de novo.

       II. Analysis.

       A. Error Preservation.         In his motion to suppress, Prusha

asserted the State illegally obtained both statements and evidence from

him.      He contended in one paragraph that the statements were

“improperly obtained in violation of the 4th, 5th, and 6th Amendments to

the United States Constitution . . . and in violation of the Constitution of

the State of Iowa.”    He contended in a separate paragraph that any

search violated “the statutes of the State of Iowa and . . . the
                                           6

Constitution of the United States.”            We find no evidence in the record

that counsel filed a written brief detailing authority supporting the

suppression motion.

       At the suppression hearing, the attorneys spoke generally about

the consent exception to the warrant requirement, without specifying

whether they relied upon the warrant requirement under the Fourth

Amendment, the Iowa Constitution, or both. The district court cited and

discussed Pals, a case decided under article I, section 8, but applied a

multifactor voluntariness test from a federal (Eighth Circuit) case and

ultimately ruled only that the warrantless search “did not violate the

Fourth Amendment.”

       Prusha forcefully argues in his appellate brief for a different

standard under the Iowa Constitution, but we conclude this argument

comes too late. 2      He recognized the Iowa Constitution as a possible

independent basis for suppression, because he made that assertion with

respect to statements, a separate issue—yet he did not assert it as a

ground for suppressing the evidence obtained through the warrantless

search. Thus, we conclude Prusha never apprised the district court that

he believed the search violated article I, section 8. Cf. State v. Vance, 790
N.W.2d 775, 780 (Iowa 2010) (“In the district court . . . , Vance’s counsel

failed to raise the legality of the stop under the Iowa Constitution. For

this reason, we will limit our discussion regarding the legality of the stop

to the Fourth Amendment.” (Citation omitted.)).               Although the district

court discussed Pals in ruling on the motion to suppress, we cannot

conclude confidently that by doing so, the district court adjudicated an

       2Prusha’s   appellate counsel did not represent him before the district court. We
emphasize that Prusha’s failure to preserve error under article I, section 8 is not
attributable to his appellate counsel.
                                        7

issue Prusha never asked it to decide under article I, section 8.

Accordingly, we only address Prusha’s Fourth Amendment claims. See

id.

      B.   Whether Deputy Shaver Seized Prusha.          “Law enforcement

officers   do   not   violate   the   Fourth   Amendment’s   prohibition   of

unreasonable seizures merely by approaching individuals on the street or

in other public places and putting questions to them if they are willing to

listen.” United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105,

2110, 153 L. Ed. 2d 242, 251 (2002).           That is what happened here.

Prusha only encountered Deputy Shaver, not a cadre of officers. Deputy

Shaver did not activate his vehicle’s emergency lights and there is no

indication in the record that he spoke to Prusha in an intimidating or

commanding tone.       We conclude Deputy Shaver did not seize Prusha

within the meaning of the Fourth Amendment by approaching him and

asking a few questions. See id.

      C. Consent Principles. In Schneckloth, the Supreme Court noted

voluntariness “cannot be taken literally to mean a ‘knowing’ choice”

under the Fourth Amendment. Schneckloth, 412 U.S. at 224, 93 S. Ct.

at 2046, 36 L. Ed. 2d at 861. Instead, the Court concluded voluntary

consent “is a question of fact to be determined from the totality of all the

circumstances,” and “knowledge of the right to refuse consent is one

factor to be taken into account.” Id. at 227, 93 S. Ct. at 2048, 36 L. Ed.

2d at 863.      Other factors include “subtly coercive police questions, as

well as the possibly vulnerable subjective state of the person who

consents.” Id. at 229, 93 S. Ct. at 2049, 36 L. Ed. 2d at 864.

      D. Application of Schneckloth. Under Schneckloth, knowledge

of the right to refuse “is not a prerequisite to establishing . . . voluntary

consent; it is merely a factor in determining its voluntariness.” State v.
                                    8

Folkens, 281 N.W.2d 1, 4 (Iowa 1979). Although it is not a per se ground

for concluding consent was involuntary, the fact Deputy Shaver did not

provide a consent advisory weighs against voluntariness here.

      The other factors commonly considered in a Schneckloth totality

analysis, however, lead us to conclude Prusha’s consent was voluntary.

Deputy Shaver did not seize Prusha under prevailing Fourth Amendment

principles.   Similarly, Deputy Shaver did not assert any claim of

authority to search or deceptively imply he was only after major drug

users. Only he and Prusha were present. See State v. Lane, 726 N.W.2d

371, 380 (Iowa 2007) (noting, as one factor weighing in favor of

voluntariness, that a single officer requested consent to search and

explained a consent form while other officers waited outside the room ).

      Prusha’s personal characteristics also indicate his consent was

voluntary. He was in his forties and there is no indication in the record

that Prusha was impaired, either from a disability or from any

substance, to such an extent as to be unable to understand Deputy

Shaver’s questions.

      Finally, because the record does not establish how long the

encounter lasted, we are unable to determine whether Deputy Shaver’s

communication with the dispatcher and questions posed to Prusha

unreasonably lengthened it.      Additionally, Prusha’s interaction with

Deputy Shaver occurred in a public place, and his contemporaneous

reaction was to facilitate the search. On balance, we conclude Prusha

voluntarily consented to the search in this case.

      III. Conclusion.

      Prusha did not raise the Iowa Constitution as a basis for

suppression until his appeal.    Therefore, he did not preserve error on

article I, section 8, and we consider his suppression claims solely under
                                    9

the Fourth Amendment.       Deputy Shaver did not provide a consent

advisory, but the Fourth Amendment Schneckloth standard does not

require one; instead, it is one factor in a totality analysis.   While that

factor weighs against voluntariness here, the other circumstances

indicate Prusha voluntarily consented to the search, and the search was

therefore valid under the Fourth Amendment. Because the search was

valid, the district court correctly denied Prusha’s motion to suppress.

We affirm Prusha’s conviction.

      COURT     OF   APPEALS     DECISION      AND    DISTRICT     COURT

JUDGMENT AFFIRMED.
