                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1332
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COLLIN ALEXANDER RUHS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris, District Associate Judge.



      A criminal defendant appeals the district court’s denial of his motion to

suppress evidence. AFFIRMED.



      David W. Hosack and Carter J. Stevens of Roberts, Stevens, Prendergast

& Guthrie, P.L.L.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Collin Ruhs appeals the district court’s denial of his untimely motion to

suppress evidence. He argues good cause existed to justify the untimely filing of

his motion and evidence related to his arrest for operating while intoxicated

should have been suppressed because the officer who stopped his vehicle did

not have reasonable suspicion to do so. We decline to affirm the district court on

the basis Ruhs waived the grounds for his motion to suppress because the State

failed to urge the district court to find the motion untimely. We affirm the district

court’s ruling on the basis reasonable suspicion existed to justify the stop of

Ruhs’s vehicle.

I. Background Facts and Proceedings

       At approximately 1:00 a.m. on November 8, 2014, Waterloo police officers

Tyler Brownell and Ryan Muhlenbruch were dispatched to a local bar at the

request of the bartender. When Officer Brownell arrived, he parked next to a

maroon truck. As Officer Brownell got out of his vehicle and began walking

towards the bar, Ruhs was getting in the driver’s seat of the maroon truck. The

officer saw Ruhs but did not know who he was. As Officer Brownell approached

the bar, he noticed the bartender was attempting to direct his attention to

something. She was waving her arms and pointing out the window, but he did

not understand what she was trying to communicate.           Officer Brownell went

inside and asked the bartender what was going on. She told him that “if [he]

wanted to save someone’s life,” he needed to go stop the man who had just left

in the maroon truck.     Officer Brownell asked if the man was drunk, and the

bartender said he was.
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       Officer Brownell advised dispatch of a drunk man who had left the bar in a

maroon truck—he incorrectly identified the truck as a Chevrolet Silverado when,

in fact, it was a GMC Sierra—and then set out to locate the truck himself. Officer

Brownell soon observed the truck being driven in a manner that led him to

believe the driver was intoxicated. Officer Brownell stopped the truck and was

joined by Officer Muhlenbruch. Ruhs admitted to the officers he had just left the

bar. The officers asked Ruhs to perform standard field sobriety tests; Ruhs did

not do well. He failed the horizontal gaze nystagmus test. He then declined to

participate in the walk-and-turn test, stating he did not think he could complete

the test because it was too windy and because he had bad knees as a result of

having been shot in both knees. Ruhs was handcuffed and taken to jail. At the

jail, Ruhs told the officers he was drunk and eventually consented to provide a

breath sample, which showed he had a blood alcohol content of .193.

       On December 10, 2014, the State filed a trial information charging Ruhs

with one count of operating while intoxicated, first offense, in violation of Iowa

Code section 321J.2 (2013). Ruhs filed a written arraignment, plea of not guilty,

and demand for speedy trial on December 17, 2014. Sixty-one days later, on

February 16, 2015, Ruhs filed a motion to suppress evidence on the basis the

officers’ actions on November 8, 2014, constituted a violation of his rights under

both the Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution.

       The district court held a hearing on the motion to suppress on March 11,

2015. On March 31, 2015, the district court denied Ruhs’s motion. In its written

order, the district court stated:
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       The court first notes that the defendant’s Motion to Suppress was
       not timely filed pursuant to rule 2.11(4) of the Iowa Rules of
       Criminal Procedure. The file reflects that the defendant filed a
       written arraignment on December 17, 2014. The defendant’s
       Motion to Suppress was filed February 16, 2015, more than 40
       days after the arraignment. No good cause was shown or asserted
       by the defendant for the delay in filing the Motion to Suppress.
       Although the Motion to Suppress was untimely, the court did not
       note that fact until after the hearing was completed.

The district court also ultimately concluded Ruhs’s constitutional rights were not

violated because the information provided to Officer Brownell by the bartender

was sufficient to establish reasonable suspicion for the investigatory stop. The

district court found the untimeliness of the motion to suppress evidence to be “an

additional ground to overrule the defendant’s motion.”

       Ruhs filed a motion to enlarge or amend on April 7, 2015, seeking to offer

good cause for the untimeliness. Ruhs argued he “had no opportunity to present

good cause as the Court requested no such showing,” and asserted:

                That had [he] been allowed to offer good cause, [he] would
       have stated as follows:
                a. That [Ruhs] requested all video tapes concerning his
       vehicle stop through a DOT Subpoena dated November 17, 2014;
                b. That [Ruhs] received one video tape on or about
       November 24, 2014;
                c. That [Ruhs] inquired, with the Waterloo Police
       Department, as to whether there were any other video tapes;
                d. That it was only after a second request that all video
       tapes were provided to the Defendant;
                e. That the video tapes were used in support of [Ruhs]’s
       motion to suppress;
                f. That [Ruhs]’s attorney alerted the assistant county
       attorney . . . about this . . . reason for the untimely motion; and
                g. That [the] assistant county attorney . . . did not resist
       filing the untimely motion late.

The district court denied Ruhs’s motion to amend or enlarge on April 9, 2015,

stating:
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       It is the defendant’s responsibility to seek and obtain a court order
       extending the deadline for the filing [of] pretrial motions when the
       grounds for the filing of such a motion are apparent. No motion
       was filed by the defendant seeking an extension of time to file
       pretrial motions even though the grounds for such a motion were
       apparent prior to the deadline.

       Ruhs waived his right to a jury trial and was found guilty on May 27, 2015,

after a trial on the minutes. On July 10, 2015, he was sentenced to a term of

incarceration not to exceed ninety days, with all but four days suspended. Ruhs

was also sentenced to twelve months of probation plus applicable fines,

surcharges, and costs.

       Ruhs now appeals the denial of his motion to suppress.

II. Standard of Review

       “We review the district court’s good cause determination regarding the

timeliness of a motion to suppress for an abuse of discretion.” State v. Ortiz, 766

N.W.2d 244, 249 (Iowa 2009). “We will not find an abuse of discretion unless the

trial court’s action was clearly untenable or unreasonable.” State v. Eldridge, 590

N.W.2d 734, 736 (Iowa Ct. App. 1999).

       With respect to Ruhs’s claim the district court should have granted his

motion to suppress on federal and state constitutional grounds, our review is de

novo. See State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007). In doing so, we

consider the entire record and independently evaluate the totality of the

circumstances. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). “We give

deference to the district court’s fact findings due to its opportunity to assess the

credibility of witnesses, but we are not bound by those findings.” Id.
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III. Discussion

       Ruhs argues neither reason given by the district court for denying his

motion to suppress evidence was justified. First, he argues his motion should not

have been denied for untimeliness because good cause existed to excuse its

lateness. Second, he argues his motion should not have been denied on the

merits because the officers did not have reasonable suspicion to stop his vehicle.

   A. Untimeliness

       The Iowa Rules of Criminal Procedure require that motions to suppress

evidence be raised prior to trial. See Iowa R. Crim. P. 2.11(2). More specifically,

the rules state that a motion to suppress evidence “shall be filed . . . no later than

40 days after arraignment.” Iowa R. Crim. P. 2.11(4). “Absent a showing of good

cause, an untimely motion to suppress constitutes waiver of the grounds forming

the basis for the motion.” Eldridge, 590 N.W.2d at 736; see also Iowa R. Crim. P.

2.11(3). “What constitutes good cause for an untimely motion to suppress is a

discretionary decision of the trial court.” Eldridge, 590 N.W.2d at 736. However,

although the district court has the discretion to find a defendant waived the

grounds for a motion to suppress, “[t]he preclusive sanctions of rule [2.11(3)]

should not be imposed lightly.” Id. The district court should consider both the

defendant’s stated reasons for failing to comply with the rules and whether the

State was prejudiced as a result, and should weigh the defendant’s interest in a

full and fair trial against the State’s interest in avoiding surprise and unnecessary

delays. Id.

       As the district court noted in its order denying the motion, Ruhs ignored

the untimeliness issue when filing his motion. Since the State also failed to raise
                                          7


the issue, the district court was left to discover the problem on its own following

the hearing. By failing to assert good cause, Ruhs waived the basis for his

motion to suppress. See State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997) (“[The

defendant] filed the suppression motion fifty-seven days after his arraignment.

The motion was late and [the defendant] made no effort to show good cause to

excuse the untimely filing.      For these reasons the motion was waived.”).

However, as the Iowa Supreme Court stated in DeVoss v. State, “Because error

preservation is based on fairness, we think both parties should be bound by the

rule.” 648 N.W.2d 56, 63 (Iowa 2002) (explaining “one party should not ambush

another by raising issues on appeal, which that party did not raise in the district

court. To that end, we hold that we will not consider a substantive or procedural

issue for the first time on appeal, even though such issue might be the only

ground available to uphold a district court ruling”).   Here, the district court ruled

on the untimeliness issue even though it was not urged to do so by the State.

The State also did not file a resistance to Ruhs’s post-hearing efforts to show

good cause.1     Therefore, although the district court found the motion was

untimely before it proceeded to rule on the merits, we do not affirm on

untimeliness grounds.     Instead, we consider the merits of Ruhs’s motion to

suppress evidence.




1
  Ruhs’s motion to enlarge or amend was not an appropriate vehicle in which to assert
good cause for the first time. See In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa
1995) (“Motions under [Iowa Rule of Civil Procedure 1.904(2)] are permitted so that
courts may enlarge or modify findings based on evidence already in the record. They
are not vehicles for parties to retry issues based on new facts.”).
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   B.         Reasonable Suspicion for Stop

        We find the district court correctly determined there was reasonable

suspicion to justify the officer’s stop of Ruhs’s truck.

        Police need only reasonable suspicion to justify investigatory stops. State

v. Tague, 676 N.W.2d 197, 204 (Iowa 2004). “When a person challenges a stop

on the basis that reasonable suspicion did not exist, the State must show by a

preponderance of the evidence that the stopping officer had specific and

articulable facts, . . . together with rational inferences from those facts, to

reasonably believe criminal activity may have occurred.”           Id.   “Whether

reasonable suspicion exists for an investigatory stop must be determined in light

of the totality of the circumstances confronting a police office, including all

information available to the officer at the time the decision to stop is made.”

State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002). “A good test of . . . a founded

suspicion is that ‘the possibility of criminal conduct was strong enough that, upon

an objective appraisal of the situation, we would be critical of the officers had

they let the event pass without investigation.’” Id. (quoting 4 Wayne R. LaFave,

Search & Seizure § 9.4(b), at 148 (3d ed. 1996)).

        The district court found, “In this case it would have been a dereliction of

Officer Brownell’s duty to allow the alleged intoxicated driver described by [the

bartender] to operate his vehicle on a public roadway without confirming or

dispelling the suspicion of criminal activity.” We agree.

        In arguing the officers lacked reasonable suspicion to justify the

investigatory stop, Ruhs urges us to find the bartender’s information unreliable

under State v. Kooima, 833 N.W.2d 202, 210–11 (Iowa 2013). In Kooima, our
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supreme court considered an investigatory stop based upon an anonymous tip—

an unidentified caller told a 911 dispatcher he saw a group of drunk men getting

into a vehicle and assumed they would be headed through town—and concluded

the nature of the tip did not justify the stop:

       [W]e hold a bare assertion by an anonymous tipster, without
       relaying to the police a personal observation of erratic driving, other
       facts to establish the driver is intoxicated, or details not available to
       the general public as to the defendant’s future actions does not
       have the requisite indicia of reliability to justify an investigatory stop.

833 N.W.2d at 210–11.          Ruhs argues the information available to Officer

Brownell in this case is comparable to that at issue in Kooima—he characterizes

the bartender’s statements as “bare assertions of operating while intoxicated with

no basis for such information,” “which amounted to nothing more than a hunch

and had no indicia of reliability.”

       Kooima has been distinguished recently by two different panels of our

court in State v. Hagge, No. 15-0652, 2015 WL 8364226, at *2–3 (Iowa Ct. App.

Dec. 9, 2015) and State v. Campbell, No. 13-0558, 2014 WL 1494906, at *1–2

(Iowa Ct. App. Apr. 16, 2014). In both Hagge and Campbell, like in Kooima, a

citizen called 911 to report a suspected drunk driver. Hagge, 2015 WL 8364226,

at *1; Campbell, 2014 WL 1494906, at *1. However, the tips in Hagge and

Campbell were deemed to be inherently more reliable because the tipsters were

not anonymous. Hagge, 2015 WL 8364226, at *2 (“Unlike Kooima, the case

before this court does not involve an anonymous tipster. In addition to identifying

himself, the 911 caller gave his location and the reason he was able to observe

[the defendant]’s intoxication.       Information imparted by a citizen informant is

generally considered reliable.” (citation omitted)); Campbell, 2014 WL 1494906,
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at *2 (“The situation before us today differs from Kooima in one important

respect. The tipster in this case was not anonymous, but rather known and

remained available until the police arrived so she could be held accountable for

the information provided.      Tips from known informants are inherently more

reliable for this very reason.” (footnote omitted)). Ruhs acknowledges Campbell,

but he argues his situation is distinguishable and Officer Brownell was obligated

to question the bartender further about the source of her information before he

could rely upon it. We disagree.

       Officer Brownell visited the bar at the request of the bartender, who

provided information to the officer in a face-to-face conversation about her

personal observations that the man who had just driven away in the maroon truck

was drunk. Moments earlier, Officer Brownell had personally observed the man

getting into the driver’s seat of the maroon truck outside the bar. The officer then

was able to corroborate the bartender’s information by his observation of the

manner the truck was driven, a fact which distinguishes this case from Kooima.

The information provided to Officer Brownell by the bartender was reliable and,

particularly along with the officer’s personal observations, established reasonable

suspicion sufficient to justify the investigatory stop of Ruhs’s truck.

       AFFIRMED.
