                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1234
                            Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AARON JAMES NELSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Shelby County, Mark J. Eveloff,

Judge.



      A defendant appeals from his conviction for operating while intoxicated,

third offense. AFFIRMED.



      Colin C. Murphy of Colin Murphy, P.C., Clear Lake, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, and Marcus Gross, County Attorney, for appellee.



      Considered by Danilson, C.J., Potterfield, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

          Aaron James Nelson appeals from his conviction for operating while

intoxicated, third offense, following a bench trial on the minutes of evidence.

    I. Factual Background

          Shelby County Deputy Sheriff Nathan Pigsley was notified by dispatch that

an intoxicated driver was possibly leaving Harlan and headed towards his home.

Deputy Pigsley was given Nelson’s name as the driver, his home address, a

description of the vehicle, and the license plate number. Dispatch received the

information from a citizen tip. Deputy Pigsley proceeded on the most direct route

between Harlan and the residential address he had been given. On the way to

the residence, the deputy observed a vehicle fitting the description he had been

given but did not observe any traffic violations or anything unusual about the

operation of the vehicle. The deputy never turned on his siren or activated his

lights.

          The vehicle pulled into the residential driveway at the address the deputy

had been given and voluntarily stopped.          The deputy also pulled into the

driveway and stopped. The driver of the vehicle turned out to be Nelson, and he

had stopped because he was presumably home and clearly not because of any

action the deputy had taken. The deputy got out of his car, knocked on the

window of the vehicle to initiate a discussion, and when the window was opened

the deputy immediately noticed the smell of an alcoholic beverage. The deputy

administered sobriety tests to Nelson and ultimately charged him with operating

while intoxicated.
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       Nelson filed a motion to suppress Deputy Pigsley’s observations, the

results of any tests administered, and any incriminating statements he may have

made at the time of the arrest.       Nelson asserted that the deputy had no

reasonable suspicion or probable cause to seize him and his vehicle by parking

behind it. The motion to suppress was overruled. Nelson waived the right to a

trial by jury, and the matter went to trial on the stipulated minutes of evidence.

Nelson was convicted and sentenced.          Nelson has appealed, contending his

motion to suppress should have been granted because the evidence obtained by

Deputy Pigsley was the result of an unconstitutional seizure.

   II. Error Preservation

       When a pretrial motion to suppress is overruled by the trial court no further

objection to its admission at trial is necessary to preserve error.        State v.

Richards, 229 N.W.2d 229, 232-33 (Iowa 1975). Error has been preserved, and

the State does not contend otherwise.

   III. Scope of Review

       Constitutional issues have been raised; therefore, our review requires an

evaluation of the totality of the circumstances. State v. Pals, 805 N.W.2d 767,

771 (Iowa 2011). The reviewing court gives deference to but is not bound by the

factual findings of the trial court because of its opportunity to evaluate the

credibility of the witnesses. Id.

   IV. Discussion

       A law enforcement officer must have a reasonable and articulable belief

that criminal activity is afoot before he or she can make a stop consistent with the

Fourth Amendment. See State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). To
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justify a stop for investigating an alleged drunk driver a tipster must relay more

than a bare assertion.     State v. Kooima, 833 N.W.2d 202, 210 (Iowa 2013).

Factors such as personal observation of erratic driving and other observations

that establish the driver is intoxicated or details not available to the general public

are required. Id. However, it is not necessary to analyze the existence of a valid

basis for a stop if there has been no stop. See State v. Pickett, 573 N.W.2d 245,

247 (Iowa 1997). Deputy Pigsley did not turn on his siren, engage his lights, or

otherwise direct Nelson to stop. Nelson pulled his vehicle into the driveway on

his own accord and stopped the movement of the vehicle.

       Nelson asserts there was a seizure when the deputy parked his vehicle in

such a manner that he could not leave or alternatively his only way out was

restricted. It is not disputed that he could not have driven forward and exited the

premises. To leave, Nelson would have had to back up using the driveway on

which he had entered and on which the deputy’s vehicle was parked. Nelson

asserts that those conditions constitute a seizure.

       Absent coercive or authoritative behavior, such as a stop, and a driver’s

ability to drive away has not been substantially impaired, there is no seizure.

State v. Wilkes, 756 N.W.2d 838, 844 (Iowa 2008). On the other hand, if the

driver’s ability to leave is wholly blocked by law enforcement, a seizure may be

said to exist. Id.

       Deputy Pigsley testified that Nelson could have exited by backing straight

back. He testified that his vehicle was parked to the left of Nelson’s. Nelson

testified he would have had to back around the deputy’s car but admitted it was

not directly behind his vehicle. A video of the arrest was admitted into evidence
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and examined by the trial court. The video showed the driveway and provided

evidence of the location of the vehicle. In its ruling the trial court stated that it

had reviewed the video and found the testimony of the deputy to be more

credible than Nelson’s. The court determined Nelson could have easily left the

property if he desired. There is no basis in the record to challenge the trial

court’s finding of fact. There was no stop and no seizure of the vehicle while it

was occupied by Nelson.       The deputy knocked on the vehicle window and

initiated his discussion with Nelson.     Discourse initiated by law enforcement

without a stop or seizure does not usually require a suspicion of criminal activity.

State v. Harlan, 301 N.W.2d 717, 719-20 (Iowa 1981). There was no seizure

until Officer Pigsley detected the strong odor of an alcoholic beverage.

       AFFIRMED.
