                    IN THE COURT OF APPEALS OF IOWA

                              No. 4-004 / 12-0955
                            Filed February 19, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREA KANDACE DONNAN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Joseph

Moothart (suppression) and Jeffrey L. Harris (trial and sentencing), District

Associate Judges.



      A defendant appeals her convictions for operating while intoxicated and

drug possession. AFFIRMED.



      Thomas Frerichs, Frerichs Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Sue Swan and Jeremy

Westendorf, Assistant County Attorneys, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                         2



TABOR, J.

       We are asked to decide if a LaPorte City peace officer violated the Fourth

Amendment by stopping a Jeep Cherokee registered in Dubuque County to

Andrea Donnan.      Donnan claims the officer lacked reasonable suspicion to

investigate whether her driving violated the terms of her temporary restricted

license.   She also maintains the district court erred in refusing to draw an

adverse inference from the officer’s act of turning off his body microphone for

twenty seconds to talk with another officer during the investigatory stop.

       Because Donnan was driving outside of normal business hours in a city

located ninety minutes from her residence and engaged in conduct indicating she

was reluctant to have police see her driving, the officer had reasonable cause to

stop the Jeep to confirm or dispel his suspicion Donnan was violating her license

restrictions. The district court did not err in denying her motion to suppress

evidence of operating while intoxicated (OWI) and drug possession found after

the stop. Moreover, we find no legal basis for the suppression court to draw a

negative inference from the officer’s action. Accordingly, we affirm.

I.     Background Facts and Proceedings

       Around 10:30 p.m., on May 20, 2011, La Porte City Police Officer Andrew

Nissen drove into the parking lot of the local Casey’s convenience store.

Casey’s closes at 11:00 p.m., and the patrol officer made it a practice to swing by

the store around closing time. Officer Nissen saw a black Jeep Cherokee parked

at a gas pump close to the store. The apparent occupants of the Jeep started
                                        3



walking out of the store toward the vehicle. When they saw the officer, they

stopped and retreated into the store.

       Officer Nissen ran the Jeep’s license plates through the Department of

Transportation (DOT) database and determined Donnan was the registered

owner, her operating privileges were revoked, she had a temporary restricted

license, and she had a Dubuque address.        Nissen learned from the driver’s

license information that Donnan was a twenty-two-year-old white female, who

was five feet two inches tall and weighed 130 pounds. The woman he saw

approaching the Jeep matched that general description.

       Officer Nissen talked to another customer in the parking lot and then left.

He returned to the lot and saw the Jeep still parked at the pumps.            The

occupants were in the vehicle watching the officer for about ten minutes. The

young woman matching Donnan’s description was in the driver’s seat. Officer

Nissen then left the area and drove approximately seventy yards down the

highway, parked, and turned his vehicle’s lights off. Nissen testified he used

binoculars to watch and determine the young woman was still in the driver’s seat.

The Jeep left Casey’s parking lot and proceeded down the highway away from

the officer’s location. The officer followed the Jeep to a nearby motel and made

a traffic stop.

       Officer Nissen found Donnan in the driver’s seat and told her the reason

he pulled her over was because she didn’t have a license to be driving around in
                                           4



LaPorte City when she was from Dubuque.1 Nissen asked Donnan if that “made

sense” and she agreed it did. Later during the stop, Donnan complained the stop

was “unjust,” and the officer had “no reason to pull [her] over.” The officer told

her because she had only a “temporary work license” and was from Dubuque

she had “no business” driving in LaPorte City.

       The officer’s investigation revealed Donnan had been operating a vehicle

while under the influence of alcohol, drugs or a combination of those and

possessed marijuana.       On June 22, 2011, the State filed a trial information

charging Donnan with possession of a controlled substance in violation of Iowa

Code section 124.401(5) (2011), and operating while intoxicated, third offense, in

violation of section 321J.2.

       On August 10, 2011, Donnan filed a motion to suppress, arguing police

lacked probable cause to stop her vehicle. The State presented the testimony of

Officer Nissen at the August 22, 2011 suppression hearing. On September 7,

2011, the Court denied the motion to suppress, concluding the officer had

reasonable suspicion to believe “she was operating beyond the terms of her

temporary restricted license” in violation of Iowa Code section 321.193.2

       On September 9, 2011, Donnan filed a motion for expanded findings of

fact and conclusions of law, arguing—among other things—that Officer Nissen’s


1
  The defense offered the recording of the traffic stop as an exhibit at the suppression
hearing. The audio of the officer’s encounter with Donnan was recorded by his body
microphone and the video was recorded by the officer’s dash camera.
2
       The department may set forth restrictions upon the driver’s license . . . . It
       is a simple misdemeanor punishable as a scheduled violation under
       section 805.8A, subsection 4, for a person to operate a motor vehicle in
       any manner in violation of the restrictions imposed on a restricted license
       issued to that person under this section.
                                        5



act of turning off his microphone when speaking to another officer should be

considered “spoliation of potentially exculpatory evidence” and a due process

violation. On September 25, 2011, the district court denied Donnan’s request for

an adverse inference from the officer’s conduct and reaffirmed its original ruling

denying the motion to suppress.

       The district court found Donnan guilty of both charges based upon

stipulated evidence. She now appeals, challenging the suppression rulings.

II.    Standard of Review

       We review Donnan’s constitutional challenge de novo.          See State v.

Vance, 790 N.W.2d 775, 780 (Iowa 2010). We owe deference to the district

court’s findings of fact because it had the chance to assess witness credibility,

but we are not bound by those findings. See id.

       To the extent we are reviewing the district court’s ruling on Donnan’s

spoliation claim; our standard is for correction of legal error.     See State v.

Hartsfield, 681 N.W.2d 626, 630–31 (Iowa 2004).

III.   Analysis

       A.     Did the peace officer have reasonable suspicion to stop the
       vehicle based on his belief the owner was operating outside the
       restrictions on her temporary restricted license?

       A search or seizure is not reasonable under the Fourth Amendment

unless the peace officer has a warrant or a recognized exception applies. State

v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). A well-established exception allows

an officer to briefly stop an individual or vehicle for investigatory purposes when

the officer has a reasonable, articulable suspicion that a criminal act has
                                            6



occurred, is occurring, or is about to occur. State v. Kinkead, 570 N.W.2d 97,

100 (Iowa 1997) (citing Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). Although an

officer must rely on more than a hunch, the likelihood of criminal activity does not

need to rise to the level required for probable cause, and “it falls considerably

short of satisfying a preponderance of the evidence standard.” United States v.

Arvizu, 534 U.S. 266, 274 (2002).

        “The principal function of an investigatory stop is to resolve the ambiguity

as to whether criminal activity is afoot.” State v. Richardson, 501 N.W.2d 495,

497 (Iowa 1993). Reasonable cause for a stop may exist even if the conduct

being investigated is “subject to a legitimate explanation and turns out to be

wholly lawful.” Id.

       Our supreme court summarized the test as follows:

       Whether reasonable suspicion exists for an investigatory stop must be
       determined in light of the totality of the circumstances confronting a police
       officer, including all information available to the officer at the time the
       decision to stop is made. The circumstances under which the officer
       acted must be viewed “through the eyes of a reasonable and cautious
       police officer on the scene, guided by his experience and training.”

Vance, 790 N.W.2d at 781 (internal citations omitted).

       After Officer Nissen noticed the reluctance of the Jeep Cherokee’s

occupants to return to their vehicle in his presence, he ran the license plate3 and

discovered the registered owner, Donnan, had a temporary restricted license.4



3
  A driver has no reasonable expectation of privacy in her license plate. United States v.
Ellison, 462 F.3d 557, 561 (6th Cir. 2006).
4
  It was reasonable for Officer Nissen to infer the driver of the vehicle was its owner
given the absence of evidence to the contrary. See State v. Mills, 458 N.W.2d 395, 397
(Iowa Ct. App. 1990); see also Vance, 790 N.W.2d at 781 (finding it “reasonable for an
officer to infer the registered owner of the vehicle will do the vast amount of driving”).
                                         7



Her license listed a Dubuque address. The officer was aware that Dubuque was

about a ninety-minute drive from LaPorte City. Nissen testified: “Through my

training and experience, the only people that have temporary restricted licenses,

they’re issued for work-related causes, not for stopping at a gas station at 10:30

p.m. on a weekend night a hundred miles from your residence.”

       Donnan contends Officer Nissen “did not have specific facts to reasonably

believe criminal activity was afoot.” She discounts the potency of the officer’s

observation of her “leaving and going back into the convenience store,” the time

of night, and her distance from home as forming nothing more than “a hunch” on

the officer’s part that she was breaking the law. We would agree with Donnan

that those circumstances alone do not give rise to a reasonable suspicion of

criminal activity. But when we factor in the officer’s knowledge that Donnan had

a temporary restricted license and his experience that such licenses are “issued

for work-related causes” we agree with the district court’s conclusion the officer

had reasonable cause to stop her Jeep Cherokee to investigate whether she was

violating Iowa Code section 321.193.

       Donnan points out the DOT may issue temporary restricted licenses for

purposes other than transportation to a place of employment, including child

care, health care, education, substance abuse treatment or community service.

See Iowa Admin. Code 761–630.3 (321J). She also argues it is possible for

someone to travel distances for their job and to work during night-time hours.




Moreover, the officer confirmed the description on Donnan’s license generally matched
the physical features of the young woman in the driver’s seat of the Jeep.
                                        8



She asserts denying her motion to suppress is “an invitation for police officers to

stop every person with a temporary restricted license.” We disagree.

      It is the combination of circumstances in this case that allowed the officer

to make the investigatory stop. See Arvizu, 534 U.S. at 273 (reiterating “totality-

of-the-circumstances” test and rejecting “divide-and-conquer” analysis that

ignores factors susceptible to an innocent explanation). It was reasonable for

Officer Nissen to believe, based on his training and experience, that the DOT

would likely issue a temporary restricted license for a driver to commute to and

from work, or to perform other permitted activities, only in the community in which

she lived. Because Donnan’s license listed her residence as Dubuque, ninety

miles away LaPorte City, the officer could stop her car to confirm or dispel his

reasonable suspicion she was violating her restrictions. See Richardson, 501

N.W.2d at 497 (explaining “principal function” of stop was “to resolve ambiguity

as whether criminal activity was afoot”). In addition, a reasonable officer could

suspect Donnan’s restrictions would preclude her from transporting other

passengers. The officer also was entitled to supplement the restricted license

information with his initial assessment of Donnan’s reaction upon seeing him.

See Arvizu, 534 U.S. at 277 (including in totality of circumstances officer’s

common sense inference that motorists are behaving oddly).

      Donnan advances a persuasive argument that a peace officer may not

stop every driver with a temporary restricted license simply to verify she is not

violating the restrictions. But see People v. Close, 939 N.E.2d 463, 471 (Ill.

2010) (rejecting defendant’s argument officer must have a reasonable, articulable
                                          9



suspicion that driver is operating outside terms of his restricted driving permit to

effect a lawful Terry stop for driving while revoked). But on the flipside, an officer

should not be barred from considering the fact a driver is operating with a

temporary restricted license a significant distance from her home at a somewhat

unlikely hour for business activities when assessing whether there is reasonable

cause for an investigatory stop for a violation of Iowa Code section 321.193.

Given the totality of circumstances, we conclude the district court properly

overruled the motion to suppress.

        B.      Did the district court err in declining to draw an adverse
        inference from the officer turning off his body microphone during the
        traffic stop?

        About twenty-three minutes into the traffic stop, Officer Nissen switched

off his body microphone, which had been recording the audio portion of his

encounter with Donnan. The sound remained off for about twenty seconds.            At

that point, Nissen had already placed Donnan under arrest and in the back of his

squad car. Another officer could be heard asking Nissen if he conducted a traffic

stop.   Nissen responded, “[N]o, here’s what I did,” and then cut the sound.

Defense counsel asked Officer Nissen why he turned off the audio recording and

he responded: “I don’t know.” During redirect examination, the officer testified he

had turned off the sound in “countless” similar situations believing it was

“common courtesy” when talking to another officer. Nissen also said he had

been trained to do so.

        When asked by the prosecutor, Nissen explained that while the

microphone was off, he told a fellow officer that he had turned his lights on when
                                           10



he was leaving Casey’s parking lot—“like [he] was going on a call”—and then

“blacked out” his vehicle about seventy yards down the road to see if Donnan

would start driving in a belief the coast was clear.

       Donnan’s counsel argued at the close of the suppression hearing that the

court should “take a negative inference” from the officer’s decision to turn off his

microphone.      The district court mentioned the microphone incident in its

September 7, 2011 order denying the motion to suppress, but did not indicate

what weight, if any, it gave the officer’s action in reaching its ruling.

       Donnan raised the issue again in her motion for an expanded ruling,

equating the officer’s intentional conduct to spoliation of potentially exculpatory

evidence. The district court denied the defense request for an adverse inference

in its September 26, 2011 ruling.         The court found the officer’s testimony

regarding what he said when his body microphone was turned off to be credible

and consistent with his other testimony at the hearing and his explanations to

Donnan regarding his reasons for the stop, which were captured on the

recording.

       On appeal, Donnan claims the officer’s “intentional interference” with the

audio recording of the stop constituted a due process violation and under the

doctrine of spoliation the district court should have drawn an adverse inference

from his decision to turn off his microphone.

       “Spoliation” is the common term for nonproduction, alteration, or

destruction of evidence. Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa

2001) (citing State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979)).            “When
                                           11



established, the inference is regarded as an admission by conduct of the

weakness of the party’s case.”       Id.    Iowa courts have recognized several

remedies where spoliation of evidence has occurred, including “discovery

sanctions, barring duplicate evidence where fraud or intentional destruction is

indicated and instructing on an unfavorable inference to be drawn from the fact

that evidence was destroyed.” Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999).

       Donnan does not cite any Iowa case addressing a spoliation claim in the

context of a suppression motion.      Nevertheless, we will reach the merits of

Donnan’s claim, assuming without deciding the doctrine may require a

suppression court to entertain an adverse inference toward the State’s case from

a peace officer’s intentional destruction of potentially exculpatory evidence.

       Donnan’s first hurdle is to show Officer Nissen destroyed evidence by

turning off his body microphone. Our supreme court addressed a similar claim in

State v. Bowers, 661 N.W.2d 536 (Iowa 2003), where the defendant “requested a

spoliation instruction based on the failure to tape-record his interrogation.” The

Bowers court stated: “We have not been made aware of any requirement that

law enforcement officers tape-record their interviews, and a failure to do so may

in no way be equated with the destruction of evidence.” 661 N.W.2d at 543. The

Bowers language recognizes spoliation only occurs when a State actor destroys

existing evidence. See State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004)

(stating party seeking adverse inference must prove “evidence was in

existence”); see also Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395,

399 (1st Cir. 2012) (holding “claim of spoliation will not lie” when “there is no
                                          12



evidence to begin with”). Donnan is essentially arguing the officer had a duty to

collect all evidence. See Gomez, 670 F.3d at 399. Bowers declined to create

such a duty.

       Since Bowers, our supreme court has “encouraged” the video and audio

taping of custodial, as well as noncustodial interviews, when it is practical to do

so. State v. Madsen, 813 N.W.2d 714, 722 (Iowa 2012); State v. Hajtic, 724

N.W.2d 449, 456 (Iowa 2006). But neither Madsen nor Hajtic speaks to the

necessity or propriety of recording the entirety of traffic stops, even the portion of

the stops where officers are speaking among themselves rather than with a

suspect. Following the logic of the Bowers decision, because we are not aware

of any requirement that peace officers tape-record all of their conversations that

occur during a traffic stop, we do not equate Officer Nissen’s failure to do so here

with the destruction of evidence.

       Moreover, even if Officer Nissen’s action could be viewed as the

destruction of evidence, the record does not support an inference the evidence

was potentially exculpatory to Donnan. The district court found the officer to be

credible in his suppression testimony explaining what he said to the other officer

while the microphone was turned off. We defer to that credibility finding. What

Officer Nissen told his colleague did not contradict the reason Nissen gave

Donnan for pulling her over.5 Accordingly, we find no error in the district court’s

denial of Donnan’s request for an adverse inference from the officer’s action.


5
  Even if the officer had revealed ulterior motives for the stop during the unrecorded
conversation, “the constitutional reasonableness of traffic stops does not depend on the
actual motivation of the individual officers involved.” State v. Predka, 555 N.W.2d 202,
205 (Iowa 1996).
                                          13



See generally United States v. Jimenez, 446 F. App’x 771, 774 (6th Cir. 2011)

(upholding traffic stop and emphasizing “the Defendants offer no reason why

turning off his microphone while discussing the situation with his fellow officers,

standing     alone,   is   enough   to   displace   the   district   court's   credibility

determination”).

       We conclude the instant facts did not require the suppression court to

draw a negative inference against the prosecution. That being said, we could

foresee a future case where selective recording would significantly weaken the

officer’s credibility and, in turn, threaten the admissibility of the evidence

collected during the investigatory stop. But because that is not the situation here,

we affirm.

       AFFIRMED.
