                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1241
                             Filed August 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAWN THOMAS BEAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      A defendant challenges a district court’s denial of his motion to suppress

evidence following convictions for drug-related offenses. AFFIRMED.



      Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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SCHUMACHER, Judge.

       Shawn Thomas Bean appeals from drug-related convictions, alleging the

district court erred in denying his motion to suppress evidence from a vehicle

search. We conclude the evidence was admissible under an exception to the

warrant requirement, and therefore the district court’s denial of the motion was not

erroneous.

Facts and Procedural history

       On October 14, 2018, at approximately 11:32 p.m., Officer Andrew

Hofbauer was conducting surveillance of a hotel parking lot in West Des Moines.

He parked his police cruiser. After activating his body camera, he exited the police

cruiser and approached a parked vehicle from the direction of the rear passenger

corner. The defendant, Bean, was seated in the driver’s seat. Amanda Meyer was

seated in the front passenger seat of the vehicle. The vehicle1 was legally parked

with its lights on and engine running.

       As he approached the vehicle, Officer Hofbauer said, “How you guys doing

tonight? Police Department.” While approaching the vehicle, the officer shined

his flashlight at and inside the vehicle. At that time, the vehicle’s lights turned off,

and Bean exited, coming around the rear to meet Officer Hofbauer near the rear

passenger-side corner. Officer Hofbauer testified that prior to his exit, Bean made

a movement consistent with hiding something near the pillar of the driver door.

       Officer Hofbauer struck up a conversation with Bean and asked him for

identification. Bean responded that his name was Justin Meyer and provided an


1Meyer is one of two registered owners of the vehicle. Bean is not a registered
owner of the vehicle.
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inaccurate birthdate. Officer Hofbauer sought to verify this information by radioing

it in. Officer Hofbauer asked Bean, “Is it okay to pat you down? No weapons?

Nothing like that, right?” Bean claimed he had none and responded by raising his

arms. Officer Hofbauer then patted Bean down and found no weapons. When

Bean inquired why he was being checked on, Officer Hofbauer named the hotel,

implying it was a site of frequent criminal activity.     The officer also added,

“Obviously, I’m not thinking you guys are out here doing that. I’m just checking on

you.”

        Another officer arrived to the scene, and Officer Hofbauer received a radio

response that the identifying information Bean provided matched no results.

Officer Hofbauer then walked around to the driver’s side of the vehicle and used

his flashlight to illuminate its interior. Officer Hofbauer leaned in close to the

driver’s side door and shined his flashlight downward into the vehicle. He noticed

a plastic bag containing a white powdery substance, whereupon he returned to the

car’s other side to arrest Bean. Bean had a digital scale and $588 cash on his

person. Officer Hofbauer then executed a search of the vehicle, which revealed

an identification card bearing Bean’s identity. Plastic baggies, a glass pipe, a

lighter, and over sixteen grams of methamphetamine were also found in the

vehicle. Bean also had an active warrant for a parole violation.

        The State charged Bean with possession of a controlled substance with

intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2018), a class

“B” felony, as a habitual offender, and with failure to possess a tax stamp, in

violation of Iowa Code sections 453B.3 and 453B.12, a class “D” felony. Bean

pleaded not guilty by written arraignment on November 27, 2018. He then filed
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pro se motions, including a motion to suppress on January 3, 2019, and an

amended motion to suppress on January 11, 2019, requesting the evidence found

during Officer Hofbauer’s search of the vehicle be suppressed. Trial counsel also

filed an amended motion to suppress.

       A hearing was held on the amended motion to suppress, and the court

denied the motion. The State amended the trial information to seek a sentencing

enhancement under Iowa Code chapter 124 for possession of a controlled

substance, third offense. At the conclusion of a two-day trial in May 2019, the jury

found Bean guilty of possession of a controlled substance and failure to possess

a tax stamp.

       Bean was sentenced to fifteen years on each count as a habitual offender

with a mandatory minimum of three years. The sentences were ordered to run

concurrently, although the sentences would run consecutive to Bean’s parole

violation. Bean now appeals, arguing the trial court’s denial of his motion to

suppress was erroneous.

Standard of Review

       “Our review of challenges to a ruling on the merits of a motion to suppress

is de novo because such claims implicate constitutional issues.” State v. Baker,

925 N.W. 602, 609 (Iowa 2019). We evaluate the totality of the circumstances,

giving deference to but not being bound by the district court’s findings of fact. Id.

Where, as here, a defendant makes no argument that the Iowa Constitution should

be interpreted differently than the United States Constitution, we assume the two

“should be interpreted in an identical fashion.” State v. Wilkes, 756 N.W.2d 838,

842 n.1 (Iowa 2008).
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Discussion

       Bean argues Hofbauer seized him without reasonable suspicion. He argues

because he was unconstitutionally seized without reasonable suspicion, the

evidence found in his car was fruit of the poisonous tree. He asserts that the plain-

view exception is inapplicable because Hofbauer “lacked reasonable suspicion

that Bean was committing or had committed a crime,” citing State v. McCoy, 692

N.W.2d 6, 23 (Iowa 2005), in which our supreme court said, “evidence discovered

indirectly through the use of evidence or information gained in [an] unlawful

detention” is barred under the exclusionary rule.

       The State responds that Bean and Hofbauer’s interaction was consensual

and not coercive, or, in the alternative, that any seizure was supported by

reasonable suspicion. The State further argues that “[t]he plain view search of the

vehicle was conducted independently of any seizure.” The State acknowledges

that if the drugs and contraband were “only in plain view as a direct result of an

unlawful seizure, then the subsequent plain view search may be a ‘fruit’ of the

seizure and subject to suppression,” see United States v. Davis, 94 F.3d 1465,

1469–70 (10th Cir. 1996), but argues that if there was a seizure , it occurred after

Bean left the methamphetamine in plain view. We agree with the State’s position

in significant part.

       “A search conducted without a valid search warrant is per se unreasonable

unless one of the well-known exceptions to the warrant requirement applies.”

State v. McGrane, 733 N.W.2d 671, 676 (Iowa 2007). The State has the burden

of proving such an exception applies by a preponderance of the evidence. State

v. Pettijohn, 899 N.W.2d 1, 14 (Iowa 2017). However, an officer’s discovery of an
                                         6


item may not always arise from a search, within the meaning of constitutional

protections:

       [P]olice may perceive an object while executing a search warrant, or
       they may come across an item while acting pursuant to some
       exception to the warrant clause . . . . Alternatively, police may need
       no justification under the Fourth Amendment for their access to an
       item, such as when property is left in a public place . . . .

Texas v. Brown, 460 U.S. 730, 738 n.4 (1983) (citations omitted).

       We conclude Officer Hofbauer’s discovery of the methamphetamine did not

occur as a result of a search, within the meaning of constitutional protections.

“Whether a police officer has commenced a ‘search’ turns not on his subjective

intent to conduct a search and seizure, but rather whether he has in fact invaded

an area which the defendant harbors a reasonable expectation of privacy.” United

States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984).

       “What a person knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection.” Katz v. United States,

389 U.S. 347, 351 (1967). “Neither probable cause nor reasonable suspicion is

necessary for an officer to look through a window . . . of a vehicle so long as he or

she has a right to be in close proximity to the vehicle.” United States v. Bynum, 508

F.3d 1134, 1137 (8th Cir. 2007); see also United States v. Brown, 653 F.3d 656,

661 (8th Cir. 2011) (“[L]ooking through a parked car’s windows is not a search for

Fourth Amendment purposes.”); United States v. Gooch, 499 F.3d 596, 600 (6th

Cir. 2007) (“[I]f Gooch did not have a reasonable expectation of privacy where he

parked his vehicle, then the observation of any contraband in plain view did not

constitute a search.” (citing Horton v. California, 496 U.S. 128, 135 (1990)); State

v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981) (“The officer, like any other citizen,
                                          7


had a right to look into the car.”); Wayne R. LaFave, 3 Search & Seizure § 7.5(a)

(5th ed.) (“[I]f the vehicle is parked on a public street or parking lot, then there is

no doubt but that the officer may stand by and look into the vehicle just as any

member of the public might.”). A hotel guest has no reasonable expectation of

privacy in a hotel’s parking lot. United States v. Washburn, 383 F.3d 638, 641–42

(7th Cir. 2004); United States v. Diaz, 25 F.3d 392, 396–97 (6th Cir. 1994); United

States v. Ludwig, 10 F.3d 1523, 1526–27 (10th Cir. 1993); United States v.

Foxworth, 8 F.3d 540, 545 (7th Cir. 1993); see also United States v. Holleman,

743 F.3d 1152, 1158–59 (8th Cir. 2014) (declining to address the issue but

acknowledging Washburn, Diaz, Ludwig, and Foxworth).

       Here, Officer Hofbauer was standing in a hotel parking lot peering into a car

with the aid of a flashlight. He saw the contraband from a vantage point where he

was lawfully present and where Bean had no reasonable expectation of privacy.

Thus, Hofbauer did not execute a search when he merely looked into Bean’s car

through a window. See Harlan, 301 N.W.2d at 720; Bynum, 508 F.3d at 1137. His

observation of the contraband did not implicate Bean’s rights under the Fourth

Amendment or article one, section eight, of the Iowa Constitution.

       We also conclude an exception applies to Officer Hofbauer’s search of the

vehicle. Here, we conclude the “plain-view” exception applies.

       Items in plain view within a car, viewed by police officers standing
       outside the car where they have a right to be, can furnish probable
       cause for a subsequent search of the car. Observation of what would
       be readily visible in the daylight does not become impermissible
       merely because a flashlight is used at night.

State v. Cullor, 315 N.W.2d 808, 812 (Iowa 1982) (citations omitted); see also

Carroll v. United States, 267 U.S. 132, 149 (1925) (“[I]f the search and seizure
                                            8


without a warrant are made upon probable cause, that is, upon a belief, reasonably

arising out of circumstances known to the seizing officer, that an automobile or

other vehicle contains that which by law is subject to seizure and destruction, the

search and seizure are valid.”). If an officer has a right to be present in a given

location and observes contraband inside a parked car with the aid of flashlight, the

officer’s “observation provides probable cause,” and the officer may enter the

defendant’s vehicle to conduct a search. Cullor, 315 N.W.2d at 811. Officer

Hofbauer was permitted to enter Bean’s vehicle to conduct a search following the

observation of contraband inside. See id.

       As Officer Hofbauer approached the vehicle on foot and identified himself,

Bean exited the vehicle. Officer Hofbauer did not stop or block in the vehicle; Bean

and Meyer had simply been sitting in the car while it was stationary in a parking

space. Following Officer Hofbauer’s observation of a white powdery substance on

the driver’s side of the car’s interior, he had probable cause to arrest Bean.

       Having concluded that Officer Hofbauer’s search and seizure of the

vehicle’s interior was valid under the plain-view, we next consider whether the

search and seizure were nonetheless violative of Bean’s rights under the doctrine

of “fruit of the poisonous tree.” “Under the doctrine, the ‘fruits’ of the prior illegality

are excluded if they were an exploitation of that prior illegality. Thus, the doctrine

operates as an extension of the exclusionary rule.” State v. Lane, 726 N.W.2d

371, 380 (Iowa 2007).

       “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
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listen.” United States v. Drayton, 536 U.S. 194, 200 (2002). “Even when law

enforcement officers have no basis for suspecting a particular individual, they may

pose questions, ask for identification, and request consent to search luggage—

provided they do not induce cooperation by coercive means.” Id. Although, “an

initially consensual encounter between a police officer and a citizen can be

transformed into a seizure or detention within the meaning of the Fourth

Amendment, if, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.” I.N.S. v.

Delgado, 466 U.S. 210, 215 (1984) (internal quotation marks omitted).

      We find the encounter began as a consensual encounter. Where evidence

“has been discovered by means wholly independent of any constitutional violation,”

such evidence may be admitted under the independent source doctrine. Nix v.

Williams, 467 U.S. 431, 443 (1984).       Even if we found the interaction here

transformed at some point into a seizure, we would conclude under the

independent source doctrine that the evidence resulting from Officer Hofbauer’s

search of the vehicle interior was properly admitted.

      Officer Hofbauer greeted Bean and Meyer while identifying himself but did

not ask that they turn the car off nor did he make any statement indicating they

were not free to leave. Bean’s vehicle was not in motion at any point during the

interaction, and Officer Hofbauer’s patrol vehicle was parked far enough away to

dispel any notion he had blocked the car in. It was Bean who exited his vehicle

from the driver’s seat and came around to the rear passenger-side corner to greet

Officer Hofbauer, unprompted. By this time, the contraband was in the location

where Officer Hofbauer would later locate it by looking into the driver’s door
                                         10


window, and the interaction up to when Bean walked around the vehicle can be

characterized as a fully consensual encounter. Therefore, even if at some point

Officer Hofbauer’s interaction with Bean converted into a seizure, his discovery of

the contraband was not the fruit of such seizure but was instead the result of his

visual scanning of the car.2 See State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981)



       2 Moreover, we are skeptical Officer Hofbauer exceeded the parameters of
Drayton. “Whether a ‘seizure’ occurred is determined by the totality of the
circumstances.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008) (citing Drayton,
536 U.S. at 207). “Factors that might suggest a seizure ‘include 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 with the officer’s request might be compelled.’” Id. at
842–43 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
       Bean points out a number of details of the interaction in support of his
argument that the interaction was coercive such that a reasonable person would
not feel free to leave: it was around midnight, Officer Hofbauer was uniformed and
armed, he approached from behind the vehicle, he shouted “police department!”,
he shined his flashlight at and into the vehicle, he patted down Bean for weapons,
he explained he had run the plates of the vehicle, he offered his opinion that the
hotel was the site of frequent crimes, and a second officer arrived.
       We do not find the time of day, Officer Hofbauer’s use of a flashlight, or
Officer Hofbauer’s self-identification as a member of the police to be coercive. See
United States v. Hayden, 759 F.3d 842, 847 (8th Cir. 2014) (holding an initial
interaction involving self-identification as police and flashlight use to be
consensual). Neither do we find the arrival of a second police officer to be
particularly coercive here. Although a second officer arrived on scene shortly after
Officer Hofbauer initiated contact with Bean and Meyer, he “did not use physical
force or show authority in any manner.” See Wilkes, 756 N.W.2d at 844 (finding
an absence of force or show of authority to be indicative of an absence of
coercion). The squad car’s headlights, spotlight, siren, and flashing lights were off.
We also, based on our independent review of the video, do not agree with Bean’s
characterization that the officer shouted at the defendant on initial contact.
       We also do not find Officer Hofbauer’s remarks regarding the location’s
crime rate to be coercive. We acknowledge that, as a matter of law, a person’s
presence in a high-crime area is alone insufficient to give rise to reasonable
suspicion that the person is engaged in criminal activity. Brown v. Texas, 443 U.S.
47, 52 (1979) (“The fact that appellant was in a neighborhood frequented by drug
users, standing alone, is not a basis for concluding that appellant himself was
engaged in criminal conduct.”). However, Officer Hofbauer’s comment does not
transform the consensual encounter into a seizure. He explained that the area’s
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(“The officer, like any other citizen, had a right to look into the car.”). Thus, we

need not consider whether the interaction became a seizure at some point after

Bean exited the car, as the source of the probable cause leading to Bean’s arrest

was discovered through untainted means and was therefore admissible.

Conclusion

       We conclude the trial court did not err in denying the motion to suppress.

The evidence was admissible under the plain-view exception as it applies to

automobile searches. Even if we found that a seizure occurred because Officer

Hofbauer’s actions were coercive or amounted to a seizure, we would still find the

evidence resulting from the search of the vehicle’s interior to be admissible. The

initial discovery of contraband in the vehicle’s interior resulted from an observation

that does not constitute a “search” within the meaning of the Fourth Amendment

or the Iowa Constitution, and the evidence was in the officer’s “plain view” while

the encounter remained consensual. The convictions are affirmed.

       AFFIRMED.




high crime rate was the reason he had run the vehicle’s license plate number and
stopped to converse with the two. By explaining the interaction was motivated by
an ongoing desire to canvass the area, the coercive effect of the comment was
lessened, as the comment represented that Bean was of no greater interest to
Officer Hofbauer than was any other person who frequented the area.
       However, even a pat down executed consensually impacts our analysis.
Under the Iowa Constitution, article I, section 8, a pat down “is a factor to be
considered in determining the voluntariness of the search.” State v. Pals, 805
N.W.2d 767, 782 (Iowa 2011). “[S]ome physical touching” by an officer “might
suggest a seizure.” Wilkes, 756 N.W.2d 838, 842–43. Yet, after the consensual
pat down occurred, our review of the totality of the circumstances indicates there
was no seizure giving rise to the protections of the Fourth Amendment and article
one, section eight of the Iowa Constitution.
