               IN THE SUPREME COURT OF IOWA
                            No. 119 / 07–0824

                          Filed October 10, 2008


STATE OF IOWA,

      Appellant,

vs.

RICHARD S. WILKES,

      Appellee.


      Appeal from the Iowa District Court for Cass County, Timothy

O’Grady, Judge.



      State seeks further review of court of appeals decision suppressing

evidence as a result of a violation of the Fourth Amendment. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT ORDER

REVERSED; AND CASE REMANDED.



      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant

Attorney General, and Daniel Feistner, County Attorney, for appellant.


      Leslie G. Peters, Avoca, for appellee.
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APPEL, Justice.

      In this case, we consider whether the district court properly

suppressed the results of sobriety and DataMaster tests obtained from a

defendant who was parked in a truck when he was approached by

uniformed police officers just before midnight.     The court of appeals

affirmed the district court’s order of suppression.   We now vacate the

decision of the court of appeals, reverse the order of the district court,

and remand the matter for further proceedings.

      I. Factual Background and Prior Proceedings.

      Atlantic Police Officer Paul Wood and a reserve officer were riding

in a patrol car on routine duty the night of January 12, 2007. Around

midnight, Wood spotted a white truck with its headlights on and its

engine running parked in Schildberg’s Quarry. Although the record does

not reveal the exact temperature, Wood testified that it was “pretty cold

outside.”

      Wood pulled the patrol car into the quarry “to make sure

everything was okay with the driver.”     While approaching the vehicle,

Wood did not activate his emergency lights or siren. He pulled his patrol

car to a distance of about ten or fifteen feet from the truck. Although the

quarry had only one entrance, the patrol car did not block the entrance

in any way.

      After pulling up behind the truck, Wood and the reserve officer

exited the patrol car and approached the vehicle. Wood observed that

the truck was occupied by two people. Wood approached on the driver’s

side of the truck and the reserve officer walked toward the truck on the

passenger side but stayed behind the vehicle. When Wood arrived at the

driver’s window, he “basically asked what was going on” and “made sure
                                    3

everything was okay.”       Through the opened driver’s window, Wood

smelled the strong odor of an alcoholic beverage coming from the driver.

      Wood then obtained identification information from both of the

occupants and determined that the driver of the truck was Richard

Wilkes.   Wood returned to his patrol car to determine whether Wilkes

had a valid driver’s license and whether there were any outstanding

warrants. After determining the status of Wilkes’ driver’s license and the

lack of outstanding warrants, Wood walked back to the truck and

requested that Wilkes step out of the vehicle.      Wilkes complied and

admitted to having consumed a glass of wine. Wood then administered

the horizontal gaze nystagmus test, the walk-and-turn test, and the one-

legged-stand test.

      Wood concluded based on these field tests that there was a strong

likelihood that Wilkes’ blood-alcohol level was over the legal limit.

Thereafter, Wood administered a preliminary breath test, which showed

that Wilkes was intoxicated.    At this point, Wood arrested Wilkes for

operating a motor vehicle while intoxicated in violation of Iowa Code

section 321J.2(1) (2005).    A DataMaster test was later administered,

showing Wilkes’ blood alcohol level to be 0.123.

      After Wilkes was charged with driving while intoxicated, he filed a

motion to suppress, claiming that the stop by Wood amounted to an

illegal seizure and that the evidence subsequently obtained should be

excluded at trial.   After a hearing, the district court concluded that

Wilkes had been seized within the meaning of the Fourth Amendment.

The district court further concluded that the seizure was not justified

because Wood did not have a reasonable and articulable suspicion of

criminal activity and because there was no evidence to suggest that

Wood was conducting a bona fide community caretaking activity.
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      The State filed an application for a stay of proceedings and

discretionary review, which we granted. The case was transferred to the

court of appeals, which affirmed the district court.    We granted the

State’s application for further review.

      II. Standard of Review.

      Because the motion to suppress was based on a claim of

deprivation of the defendant’s constitutional right against unlawful

seizures, this court’s review is de novo. State v. Breuer, 577 N.W.2d 41,

44 (Iowa 1998).

      III. Discussion.

      A. Introduction.       This case presents two potential issues of

constitutional law.   The first constitutional question is whether Wood

and the reserve officer in this case “seized” Wilkes under the Fourth

Amendment prior to reasonably suspecting Wilkes was driving a motor

vehicle while intoxicated. See, e.g., United States v. Drayton, 536 U.S.

194, 210, 122 S. Ct. 2105, 2111, 153 L. Ed. 2d 242, 257 (2002). If no

such seizure occurred, the motion to suppress is without merit. To the

extent Wilkes was subject to seizure after Wood had reasonable

suspicion that Wilkes was driving while intoxicated, such evidence is

admissible.   Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20

L. Ed. 2d 889, 906 (1968).

      In the event evidence was obtained pursuant to a seizure prior to

reasonable suspicion that a criminal offense may have been committed,

the police may have acted properly if the seizure amounted to a

“community caretaking activity.” Such seizures have been held not to

violate the Fourth Amendment if the interest in community welfare

outweighs any invasion of privacy that accompanies the seizure. State v.

Carlson, 548 N.W.2d 138, 142 (Iowa 1996). If, however, the conduct of
                                             5

Wood and the reserve officer amounted to a seizure and their actions do

not amount to a valid community welfare check, a violation of the Fourth

Amendment is present and the evidence obtained pursuant to the

unlawful conduct must be suppressed. State v. Crawford, 659 N.W.2d

537, 541 (Iowa 2003).

       Wilkes also seeks to exclude evidence on nonconstitutional

grounds. He asserts that because the field sobriety tests were improperly

administered, implied consent was improperly invoked for want of

probable cause.        On appeal, he also asserts that the results of the

DataMaster test should be suppressed because he had chewing tobacco

in his mouth when the test was administered.

       B. Constitutional Issues. The Fourth Amendment to the United

States Constitution provides that “[t]he right of the people to be secure in

their persons . . . against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause. . . .”

U.S. Const. amend. IV.             “The Fourth Amendment, which is made

applicable to the states through the Fourteenth Amendment, gives

citizens broad protection against warrantless searches and seizures.”

Crawford, 659 N.W.2d at 541. The purpose of the Fourth Amendment is

to protect “the privacy and security of individuals against arbitrary

intrusion by government officials.” State v. Brecunier, 564 N.W.2d 365,

367 (Iowa 1997).1



       1Article  I, section 8 of the Iowa Constitution also contains a right to be free from
unreasonable searches and seizures. Iowa Const. art. I, § 8. We zealously guard our
ability to interpret the Iowa Constitution differently from authoritative interpretations of
the United States Constitution by the United States Supreme Court. In re Detention of
Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). On appeal, however, Wilkes makes no
argument that the Iowa Constitution should be interpreted differently than the United
States Constitution. Therefore, consistent with our prior cases, we for prudential
reasons assume for the purposes of this appeal that the United States Constitution and
the Iowa Constitution should be interpreted in an identical fashion. Id.
                                     6

      In order for the Fourth Amendment to apply in this case, there

must first be a “seizure.”   The United States Supreme Court has not

offered a comprehensive definition of the term.      The Supreme Court,

however, emphasized almost forty years ago that not all personal

intercourse between the police and citizens involve seizures. Terry, 392

U.S. at 20 n.16, 88 S. Ct. at 1879 n.16, 20 L. Ed. 2d at 905 n.16.

According to the Supreme Court, “Only when the officer, by means of

physical force or show of authority, has in some way restrained the

liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id.

      Whether a “seizure” occurred is determined by the totality of the

circumstances.    Drayton, 536 U.S. at 207, 122 S. Ct. at 2113, 153

L. Ed. 2d at 255. 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.

United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877,

64 L. Ed. 2d 497, 509 (1980). In contrast, “otherwise inoffensive contact

between a member of the public and the police cannot, as a matter of

law, amount to a seizure of that person.” Id. at 555, 100 S. Ct. at 1877,

64 L. Ed. 2d at 509–10.

      The Supreme Court has on occasion stated that a seizure does not

occur if “a reasonable person would feel free ‘to disregard the police and

go about his business. . . .’ ” Florida v. Bostick, 501 U.S. 429, 434, 111

S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991) (quoting California v.

Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690,

698 (1991)). Nonetheless, the Supreme Court has recognized that many

persons respond to police requests even if they are free to leave. The fact
                                     7

that a citizen chooses to respond, however, does not convert an

encounter into a seizure. According to the Supreme Court, “While most

citizens will respond to a police request, the fact that people do so, and

do so without being told they are free not to respond, hardly eliminates

the consensual nature of the response.” INS v. Delgado, 466 U.S. 210,

216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984).             It thus

appears that objective indices of police coercion must be present to

convert an encounter between police and citizens into a seizure. State v.

Reinders, 690 N.W.2d 78, 82 (Iowa 2004).

      The element of coercion is not established by ordinary indicia of

police authority. The mere showing of a badge by a police officer does

not create a seizure. Florida v. Rodriguez, 469 U.S. 1, 5–6, 105 S. Ct.

308, 311, 83 L. Ed. 2d 165, 170–71 (1984) (per curiam) (holding no

seizure where officer approaches defendant in airport, shows him badge,

and asks questions); Delgado, 466 U.S. at 212, 104 S. Ct. at 1760, 80

L. Ed. 2d at 252–53 (finding that immigration agents wearing badges and

questioning workers did not constitute a seizure). The fact that an officer

is in uniform or visibly armed “should have little weight in the analysis.”

Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at 254.

      This court has applied the teachings of the Supreme Court’s

seizure cases to situations where police officers approach parked

vehicles. State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981). Other state

and federal courts have taken a similar approach. See United States v.

Packer, 15 F.3d 654, 657 (7th Cir. 1994); United States v. Pavelski, 789

F.2d 485, 488–89 (7th Cir. 1986); Riley v. State, 892 A.2d 370, 374 (Del.

2006).

      In Harlan, we considered whether a seizure occurred for Fourth

Amendment     purposes   when    a   police   officer   discovered   signs   of
                                      8

intoxication after he approached the driver of a parked vehicle in the

early morning hours.      Harlan, 301 N.W.2d at 720.     The police officer

followed the vehicle for several blocks along “a circuitous route.” Id. at

719. The officer did not have reason to suspect that criminal activity was

afoot. Id. Eventually, the driver returned to the street outside the house

where the officer had first observed him and parked the vehicle leaving

the engine running.      Id.   The officer pulled over and approached the

driver.   Id.   When the officer shined his flashlight into the vehicle, he

observed that the driver’s eyes were watery and bloodshot.        Id.   The

officer also smelled alcohol coming from the driver’s person.     Id.   The

officer subsequently requested his driver’s license, asked him to perform

field sobriety tests, and arrested him for operating a motor vehicle while

intoxicated. Id.

      We determined under the facts in Harlan that no seizure occurred

prior to the point at which the police officer had reasonable suspicion to

believe that Harlan was driving his vehicle while intoxicated. Id. at 720.

Citing Terry and Mendenhall, we emphasized that the facts showed there

was no threat of physical force, no use of language, no use of sirens, and

no forced stop. Id. We noted that the officer, like any other citizen, had

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

officer merely approached Harlan’s parked vehicle. Id.

      We find that this case is similar in many respects to Harlan. While

the court of appeals emphasized that Wood was in uniform and shined

headlights on the truck, these facts are not dispositive on the seizure

issue. While the fact that Wood was in uniform is not entirely irrelevant,

the United States Supreme Court has downplayed the significance of a

police uniform as a factor in determining whether an encounter is a

seizure. Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at
                                     9

254.   Further, the use of ordinary headlights at night is simply not

coercive in the same manner as the activation of emergency lights which

invoke police authority and imply a police command to stop and remain.

See State v. Calhoun, 792 P.2d 1223, 1225 (Or. Ct. App. 1990) (noting

that the use of headlights and spotlight did not transform the encounter

into a seizure).

       While it is true that in this case two officers were involved in the

encounter, the reserve officer remained behind the vehicle and did not

use physical force or show authority in any manner. The involvement of

two officers in this fashion was certainly less threatening than in

Delgado, a case in which the Supreme Court held that no seizure

occurred where immigration officers stood at the exits of a building while

colleagues questioned employees. Delgado, 466 U.S. at 218, 104 S. Ct.

at 1763–64, 80 L. Ed. 2d at 256.

       The fact that Wood parked behind the vehicle driven by Wilkes also

does not convert the encounter into a seizure. A number of the cases

involving encounters between police officers and citizens in parked

vehicles have considered the location of the patrol car(s) in relation to the

parked vehicle as a factor in determining whether a seizure occurred

under the Fourth Amendment.        For example, in People v. Cascio, 932

P.2d 1381, 1386–87 (Colo. 1997), the court concluded that if the police

car wholly blocks the defendant’s ability to leave, then an encounter

cannot be considered consensual, but where egress was only slightly

restricted, with approximately ten to twenty feet between the two

vehicles, the positioning of the vehicles does not create a detention.

       Here, the ability of Wilkes to drive away was not substantially

impaired. In fact, Wilkes testified at the suppression hearing that there
                                    10

were at least two ways for him to turn his truck around and leave the

quarry, had he chosen to do so.

      We conclude under all the facts and circumstances that no seizure

occurred under the Fourth Amendment when Wood approached the

vehicle.   Simply put, neither of the officers displayed coercive or

authoritative behavior to transform this encounter into a seizure for

Fourth Amendment purposes.         Prior to smelling alcohol on Wilkes’

person, the stop was consensual.     Once Wood smelled the alcohol, he

had a reasonable and articulable suspicion of criminal activity to detain

Wilkes and administer sobriety tests. See Mark A. Bross, The Impact of

Ornelas v. United States on the Appellate Standard of Review for Seizure

Under the Fourth Amendment, 9 U. Pa. J. Const. L. 871, 881 (2007)

(noting that a voluntary encounter may turn into seizure supported by

reasonable   suspicion   or   probable   cause).   As   a   result   of   our

determination that a seizure did not occur until after Wood had a

reasonable suspicion sufficient to restrain Wilkes, it is not necessary to

consider whether the encounter was within the “community caretaking”

exception to the Fourth Amendment.

      C. Nonconstitutional Challenges. In the alternative, Wilkes on

appeal challenges the veracity of DataMaster results on the ground that

his use of chewing tobacco may have affected the result. This assertion,

however, was not raised in the district court and is thus not preserved on

appeal. State v. Boer, 224 N.W.2d 217, 221 (Iowa 1974).

      Wilkes also claims the State lacked probable cause to invoke

implied consent pursuant to Iowa Code section 321J.6. To support his

argument, Wilkes argues that Wood improperly administered the walk-

and-turn and one-legged-stand tests. Even if true, any irregularity with

respect to the walk-and-turn and one-legged-stand tests has no legal
                                   11

significance. Wood smelled the strong odor of alcohol on Wilkes’ breath,

obtained a concession that he had been drinking, and performed the

horizontal gaze nystagmus test. Based on this information, Wood had an

articulable suspicion to administer a preliminary breath test (PBT)

pursuant to Iowa Code section 321J.5(1)(a).      The results of the PBT

constituted probable cause to invoke implied consent.            Iowa Code

§ 321J.6(1)(d); State v. Horton, 625 N.W.2d 362, 364 (Iowa 2001).

      IV. Conclusion.

      For the above reasons, the opinion of the court of appeals is

vacated, the order of the district court suppressing the evidence is

reversed, and the case remanded to the district court for further

proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT ORDER REVERSED; CASE REMANDED.

      All justices concur except Baker, J., who takes no part.
