                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0622
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MEHMED IVANKOVIC,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Steven W. Guiter

(motion to suppress), and Gregory D. Brandt (trial), District Associate Judges.



      Mehmed Ivankovic appeals from the denial of his motion to suppress and

subsequent conviction for operating while intoxicated. AFFIRMED.




      Eric W. Manning of Manning Law Office, P.L.L.C., Urbandale, for

appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau and Genevieve

Reinkoester (until withdrawal), Assistant Attorneys General, for appellee.



      Heard by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, Chief Judge.

       Mehmed Ivankovic appeals from a conviction of operating while

intoxicated.   The crux of this case is whether Ivankovic was subject to an

unreasonable seizure. A preliminary question, however, is when Ivankovic was

seized. The defendant asserts it was when a police officer turned on his patrol

car lights near the defendant’s parked and running car. The State responds that

no seizure occurred before Ivankovic was aroused; but no matter when the

seizure occurred, the State contends it was authorized by the officer’s community

caretaking function. We agree with the State on both issues and affirm.

I. Background Facts and Proceedings.

       There are no real disputes about the facts as found by the district court.

              On March 25, 2014, at around 11:30 p.m. Polk County
       Deputy Barber’s attention was drawn to a car parked in the Earl’s
       Tire Center parking lot with its lights on. Earl’s Tire Center is in the
       4200 Block of Northwest Second Street in Des Moines, Iowa. The
       deputy was performing patrol and traffic enforcement functions on
       this date.
              Deputy Barber, on seeing the car with its lights on, pulled
       into Earl’s Tire Center lot and parked his marked patrol vehicle at
       an angle such that his headlights were shining on the driver’s side
       of the defendant’s vehicle. The deputy saw the defendant sitting in
       the driver’s seat. The driver’s seat was reclined, and the car was
       running with its lights on. [Upon activating his lights, we are able to
       hear the deputy radio dispatch that he was investigating a car
       running in the lot with a male passed out behind the wheel.]

       Ivankovic was arrested after being roused and failing field sobriety tests.

He was charged with operating while intoxicated, second offense, and filed a

motion to suppress, contending there was “neither probable cause nor

reasonable suspicion to conduct an investigatory or traffic stop of the defendant

or his vehicle.” He also argued there “was no legitimate reason to engage in a
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community caretaking function to check on defendant’s welfare.” He argued that

he “maintained an expectation of privacy which was unreasonably intruded upon

by the traffic stop and seizure and which was illegal and unlawful and violated his

rights afforded to him under the Fourth Amendment to the United States

Constitution and Article I, section 8 of the Iowa Constitution.” Ivankovic sought to

suppress “[a]ny subsequent evidence gained from the illegal stop and seizure as

well as any fruits of the poisonous tree . . . including any admissions by Mr.

Ivankovic, as well as results of field sobriety testing, results of the preliminary

breath test, and the ‘refusal’ of the Datamaster test.”

       Following a hearing on the motion to suppress, the district court ruled:

       Deputy Barber testified before exiting his marked patrol car and
       approaching the defendant’s vehicle he activated the car’s red and
       blue flashing lights. He stated the reason for activating the lights
       was to activate the car’s audio and video recorder, make his
       presence known, all of which provides him with protection along
       with a show of authority.
              Deputy Barber then approached the defendant’s car and
       knocked on the window with his flashlight. [Testified, “And as I
       approached, I could see the male passed out in the driver’s seat.”]
       The defendant did not wake up. The deputy testified he then
       opened the driver’s side car door and shook him to wake him up.
       These events are shown in State’s Exhibit 1, the in-car video.
              The officer on waking the defendant noted he was very
       confused and disoriented, his eyes were bloodshot and watery and
       he was slurring his words, the officer could smell an odor of an
       alcoholic beverage on the defendant’s breath.
              The area of Des Moines that Earl’s Tire Center is located in
       what was described by the officer as a high crime area. The officer
       further testified that there had been burglaries in the area, mainly of
       car dealerships, one of which was located next to Earl’s and one
       across the street.
              The officer on cross-examination testified his purpose in
       approaching the defendant’s car was to investigate why it was there
       with its lights on. The officer had not received any alerts from
       dispatch at that time of criminal activity occurring, but the officer
       had investigated burglaries in the area before including at Earl’s
       Tire Center when tires were being taken from a tire rack.
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              ....
              . . . Mr. lvankovic was asleep and unaware of Deputy
      Barber’s presence until the Deputy opened the car door and shook
      Mr. lvankovic to wake him up.
              The issue for the Court becomes whether Mr. Ivankovic was
      “seized” for the purposes of the Fourth Amendment, if he was
      asleep. Based on the evidence presented Mr. Ivankovic was
      asleep until awake[ne]d by Deputy Barber. Mr. Ivankovic while
      asleep did not see the deputy’s car’s flashing lights or any other
      show of authority that may have been present.
              The Federal Court of Appeals for both the Sixth and Seventh
      Circuits have held there to be no seizure where the person is
      asleep or unconscious. Vargas v. City of Philadelphia, [No. 11-
      2639,] 2013 WL 6077160[, at *6 (E.D. Pa.] Nov. 18, 2013), citing
      Leaf v. Shelnutt, 400 F.3d 1070, 1090 (7th Cir. 2005), and Peete v.
      Metro Gov’t of Nashville & Davidson Cnty., 486 F.3d 217[, 217] (6th
      Cir. 2007).
              The Court holds that Mr. lvankovic was not seized when
      Deputy Barber approached the defendant’s vehicle as he was
      unaware the deputy was even there.              Deputy Barber had
      reasonable suspicion sufficient to detain Mr. Ivankovic after he was
      awakened due to observing his slurred speech, bloodshot, watery
      eyes and the smell of alcohol. The defendant’s car was running
      with its headlights on.
              The Court does not need to address the “community
      caretaking” exception to the Fourth Amendment for the same
      reasons as addressed in State v. Wilkes[, 756 N.W.2d 838 (Iowa
      2008)].

      Ivankovic appeals, contending the court erred in denying his motion to

suppress because he was subjected to an unreasonable seizure.

II. Scope and Standard of Review.

      We review constitutional claims de novo. State v. Kurth, 813 N.W.2d 270,

272 (Iowa 2012).

III. Discussion.

      In order for the Fourth Amendment to apply, there must first be a seizure.

Wilkes, 756 N.W.2d at 842. “[W]e make an independent evaluation [based on]

the totality of the circumstances as shown by the entire record.” Kurth, 813
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N.W.2d at 272 (citations omitted). “Each case must be evaluated in light of its

unique circumstances.” Id. (citations omitted).

       Ivankovic asserts the police had no probable cause or reasonable

suspicion to stop his vehicle.    But there was no “traffic stop.”     An officer at

11:30 p.m. observed a car with its lights on in a parking lot of a closed business.

When the officer pulled into the lot, the officer saw a male in a reclined driver’s

seat and a car running with its lights on. He approached the parked vehicle. The

occupant did not stir. As observed in Wilkes, “[t]he officer, like any other citizen,

has a right to look into the car. As a result, no seizure occurred when the officer

merely approached [the defendant’s] parked vehicle.” 756 N.W.2d at 844.

       Ivankovic argues that the use of the officer’s flashing lights turned the

encounter into a seizure. In State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981),

our supreme court noted:

       [I]t is important to remember “not all personal intercourse between
       policemen and citizens involves ‘seizures’ of persons” that implicate
       the fourth amendment. A seizure occurs “only when the officer, by
       means of physical force or show of authority, has in some way
       restrained the liberty of a citizen.”
                Although each case must be decided on its facts, there are
       some guidelines as to when a person’s liberty has been restrained
       by “physical force or show of authority.” If an officer takes hold of a
       suspect, a seizure has occurred. A seizure might occur if there was
       “the threatening presence of several officers, the display of a
       weapon by an officer, some physical touching of the person of the
       citizen, or the use of language or tone of voice indicating that
       compliance might be compelled.” The use of sirens, flashing lights
       or other signals to pull a moving vehicle to the side of the road
       might also constitute a show of authority that is a seizure. One
       commentator suggests that a seizure occurs “if the officer engaged
       in conduct which a reasonable man would view as threatening or
       offensive even if coming from another private person.”

(Citations omitted.)
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       We know from Wilkes, 756 N.W.2d at 844, that parking behind a parked

vehicle without blocking the defendant’s vehicle is not a seizure. We also know

that an officer who uses his emergency lights and blocks a vehicle while

attempting to investigate an individual in a parked car to address an alleged

caretaking function will constitute a seizure—at least if the stopped individual is

conscious. See Kurth, 813 N.W.2d at 277.

       While Harlan, does state that a display of flashing lights “might also

constitute a show of authority that is a seizure,” 301 N.W.2d at 720, under the

totality of the circumstances presented here, Deputy Barber did not restrain

Ivankovic’s liberty in any way prior to rousing him. A submission to a “show of

authority” is required for a seizure to occur. California v. Hodari D., 499 U.S.

621, 627–29 (1991) (holding that seizure of fleeing suspect did not occur

because seizure requires the show of authority and submission to authority).

The cases cited by the district court from other jurisdictions are in accordance

with this principle. See also United States v. Bady, 503 F. App’x 481, 484 (7th

Cir. 2013) (“Bady argues that he was seized at the moment the officers blocked

in the Alero because at that point a reasonable person in his position would not

have felt free to leave.    But Bady points to only a necessary rather than a

sufficient condition for a seizure. An officer’s show of authority is not a seizure

until the person at whom that show of authority is directed actually submits.

Though the officers’ use of their emergency lights and their attempt to position

their car to block in the Alero unquestionably qualify as shows of authority, Bady

and the driver of the Alero did not initially submit to the officers.”      (citations

omitted)); Leaf, 400 F.3d at 1090 (“If Mr. Leaf’s failure to flee can be attributed to
                                           7


the fact that he was asleep or otherwise unconscious, we think that it cannot be

said that the officers terminated his freedom of movement through their show of

authority.”); State v. Gonzalez, 330 P.3d 969, 972 (Ariz. Ct. App. 2014) (“Absent

use of physical force, a defendant is not seized until he becomes ‘aware of and

submit[s] to the assertion or display of police authority.’” (citations omitted)).

       At the earliest here, any seizure occurred when the officer directed

Ivankovic to shut off the ignition and removed his seat belt, with which Ivankovic

complied.    But by this time, the officer had reasonable suspicion to believe

Ivankovic was operating his motor vehicle while intoxicated.           Moreover, the

officer’s encounter with Ivankovic was a valid community caretaking activity.

       We engage in a three-step analysis when considering community

caretaking claim: “(1) was there a Fourth Amendment seizure?; (2) if so, was the

police conduct actual community caretaker activity?; and (3) if so, did the public

need and interest outweigh the intrusion upon the defendant’s privacy?” State v.

Crawford, 659 N.W.2d 537, 543 (Iowa 2003), cited with approval in Kurth, 813

N.W.2d at 277.

       There are three recognized categories of community caretaker activities:

“(1) the emergency aid doctrine, (2) the automobile impoundment/inventory

doctrine, and (3) the ‘public servant’ exception.” Crawford, 659 N.W.2d at 541.

This case did not involve an automobile impoundment or inventory. Thus, we

look to whether the officer was engaged in offering emergency aid or a public

servant. “The two doctrines . . . are closely related.” Id. In Crawford, the court

noted that assisting a motorist with a flat tire might be an example of the public

servant doctrine, whereas “providing first aid to a person slumped over the
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steering wheel with a bleeding” head gash would fall under the emergency aid

doctrine. Id. at 541–42 (citation omitted).

       Considering the objective circumstances, see State v. Carlson, 548

N.W.2d 138, 141–42 (Iowa 1996), we conclude Deputy Barber’s actions were

reasonable. At the suppression hearing, Deputy Barber testified that he thought

the driver in the parked vehicle was passed out. The vehicle was running, and its

lights were on. When the deputy engaged his patrol car lights, Ivankovic did not

stir. When the officer shined his flashlight and knocked on the window, Ivankovic

did not stir. Under similar facts, our supreme court concluded it was reasonable

for an officer to enter a vehicle to check on the individual’s condition and render

aid when the individual is passed out, disoriented, or unconscious.       State v.

Kersh, 313 N.W.2d 566, 568–69 (Iowa 1981) (concluding the officer should be

“commended rather than criticized” for checking on the defendant), abrogated on

other grounds by State v. Lake, 476 N.W.2d 55, 56–57 (Iowa 1991).

       We find that the deputy’s decision to check on the welfare of the vehicle

occupant was reasonable under the circumstances. The officer did no more than

was “reasonably necessary to determine whether a person is in need of

assistance, and to provide that assistance.” See Crawford, 659 N.W.2d at 542–

43 (quoting Carlson, 548 N.W.2d at 142).

       We affirm the district court’s denial of Ivankovic’s motion to suppress and,

therefore, affirm his conviction.

       AFFIRMED.
