                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0725
                               Filed July 22, 2020


STATE OF IOWA,
     Plaintiff-Appellant,

vs.

MICHAEL HILLERY,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.



      On interlocutory appeal, the State challenges the district court’s

suppression of physical evidence and the defendant’s statements based on a

finding the officer improperly promised the defendant leniency. REVERSED AND

REMANDED.



      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellant.

      Martha J. Lucey, State Appellate Defender, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
                                          2


GREER, Judge.

       Upon finding an officer improperly promised Michael Hillery leniency, the

district court suppressed incriminating statements Hillery made and physical

evidence obtained from him. On interlocutory appeal, the State challenges that

ruling in several ways. First, the State contends the court should not have relied

on the common law evidentiary test to suppress the evidence because Hillery did

not raise that ground for suppression to the district court. Second, the State argues

in the alternative that even if the district court properly considered the evidentiary

exclusion rule, the court erred in determining the officer’s statements to Hillery

constituted a promise of leniency. Third, the State maintains that even if the officer

improperly promised leniency, only Hillery’s statements—not any physical

evidence—should have been suppressed. Hillery urges us to affirm the district

court ruling granting his motion to suppress, and he argues alternative theories for

doing so.

       I. Background Facts and Proceedings.

       On November 14, 2018, Officer Chad Leitzen saw Hillery ride his bicycle up

to the front door of a home that the officer knew was being investigated for illegal

drugs sales and consumption. When Officer Leitzen drove by the home again a

few minutes later, he saw both Hillery, who was getting back on his bicycle to leave,

and the resident of the home who was suspected to be illegally selling drugs.

Believing Hillery had just bought drugs from the resident, the officer followed Hillery

as he rode his bicycle away.

       As Hillery got off his bicycle to walk it up a hill, Officer Leitzen drove past

and parked further up the hill. Then, as Hillery walked past, Officer Leitzen opened
                                           3


his vehicle door, called Hillery by his first name, and asked if he could speak with

him. According to Officer Leitzen’s testimony at the suppression hearing, Hillery

“completely ignored [him], like [he] wasn’t there. And continued walking.” Officer

Leitzen then got out of the car and started walking behind Hillery. At this point, the

officer smelled “fresh,” unburnt marijuana coming from Hillery’s person. The officer

again called Hillery’s name and told him he needed to stop.                When Hillery

continued to ignore him, Officer Leitzen—who was not in uniform—“pulled out [his]

badge” and “walked up next to” Hillery, showing Hillery the badge and identifying

himself as part of the police drug task force. Hillery continued to walk while telling

Officer Leitzen he had done nothing wrong.

       At that point, Officer Leitzen stepped in front of Hillery, stopping him from

walking any further. Officer Leitzen told Hillery to give him what he had just bought,

and Hillery responded that he bought nothing. Hillery told the officer he stopped

at the home to drop off money owed to his coworker who lived there. Officer

Leitzen told Hillery he was sure that he bought something and he needed to give

it to him. He also told Hillery he was not looking to take him to jail that day.

According to this testimony at the suppression hearing, Officer Letizen said, “I’m

looking more for your cooperation to try and get your help to get into that place. . . .

That’s not to say that you’re not going to go to jail someday for this, but I’m not

looking to take you to jail today for it. I just want your cooperation.”

       Hillery then reached into his pocket and came out with a balled fist,

reiterating to the officer that he had bought nothing and had not done anything

wrong. Officer Leitzen put his open hand below Hillery’s balled up fist and told

Hillery to drop what he was holding. Hillery dropped a small plastic bag holding
                                          4


crack cocaine, shoved his bicycle into the officer, and took off running. Officer

Leitzen chased Hillery and grabbed onto him, at which point Hillery said, “I thought

you said I’m not going to jail today.” Officer Leitzen responded, “I told you that I

need your cooperation, and you’re not going to go to jail today if you start

cooperating, but that better happen pretty quickly, because there’s officers

coming.” Hillery conveyed he would cooperate, returned to the area where his

bicycle was, and sat down on the curb. At some point later, Hillery also turned

over a bag of marijuana to the officer.

       In February 2019, Hillery was charged with one count of possession of a

controlled substance (crack cocaine) and one count of possession of a controlled

substance (marijuana). Hillery moved to suppress, alleging a violation of his

constitutional rights when he was stopped and detained by the officer without a

warrant and questioned without the benefit of counsel or having his rights read to

him. Later, Hillery filed an addendum to his motion to suppress, asserting “[t]hat

any evidence and statements that were obtained were done so after a promise of

lenience, in violation of the Fifth Amendment to the United States Constitution, and

article I, sections 1 and 8 of the Iowa Constitution.” He asked that any physical

evidence and statements be suppressed as a result.

       Following a suppression hearing, at which only Officer Leitzen and another

officer—who later talked to Hillery about signing a cooperation agreement—

testified, the district court granted Hillery’s motion to suppress.    During that

hearing, Officer Leitzen acknowledged that “it wasn’t until after you [Leitzen] had

promised him [Hillery] he wouldn’t be going to jail that he finally turned over the

drugs.” The court ruled:
                                        5


      The Iowa and United States Supreme Courts have held many times
      that an officer’s promise of leniency is improper to obtain cooperation
      or confessions from Defendants. See State v. Polk, 812 N.W.2d 670
      (Iowa 2012); Brady v. U.S., 397 US 742, 90 S. Ct. 1463 (1970)
      ( . . . even a mild promise of leniency was deemed sufficient to bar
      the confession, not because the promise was an illegal act as such,
      but because defendants at such times are too sensitive to
      inducement and the possible impact on them too great to ignore and
      too difficult to assess.)
               IT IS THEREFORE ORDERED that the Motion to Suppress is
      granted. The evidence obtained after the promise of leniency was
      made is fruit of the poisonous tree and therefore is not admissible
      against him.

The State appeals.

      II. Standards of Review.

      “Our review of the district court’s ruling on promises of leniency under the

common law evidentiary test is for corrections of errors at law.” State v. Howard,

825 N.W.2d 32, 39 (Iowa 2012).

      “We review determinations of whether to suppress both evidence obtained

and statements made in violation of constitutional guarantees de novo.” State v.

Tyler, 867 N.W.2d 136, 152 (Iowa 2015).

      III. Discussion.

      A. Evidentiary Test.

      There are two ways to challenge a confession based on an improper

promise of leniency. One way is the common law evidentiary test. See Howard,

825 N.W.2d at 39 (“We recently declined the State’s invitation to abandon our

common law evidentiary rule on promissory leniency in favor a totality-of-the-

circumstances test.”). “The test ‘is whether the language used amounts to an

inducement which is likely to cause the subject to make a false confession.’” Id.

at 40 (citation omitted). The common law evidentiary test is a per se exclusionary
                                          6

rule. See State v. Madsen, 813 N.W.2d 714, 725 (Iowa 2012). In other words, if

the court determines the officer’s statements to Hillery constituted an

impermissible promise of leniency, it must suppress. See Howard, 825 N.W.2d at

40 (“[A] ‘confession can never be received in evidence where the prisoner has

been influenced by any threat or promise.’” (citation omitted)). “The use of a per

se exclusionary rule eliminates the need for the court to attempt to read the mind

of defendant to determine if his confession, in fact, was induced by or made in

reliance upon the promise of leniency.” Madsen, 813 N.W.2d at 726.

       Additionally, a defendant can challenge the voluntariness of their

confession following an alleged promise of leniency under the Fifth and Fourteenth

Amendments to the United States Constitution. See Dickerson v. United States,

530 U.S. 428, 433 (2000) (“Over time, our cases recognized two constitutional

bases for the requirement that a confession be voluntary to be admitted into

evidence: the Fifth Amendment right against self-incrimination and the Due

Process Clause of the Fourteenth Amendment.”). When a defendant challenges

the voluntariness of their statements under the constitutional analysis, we “look at

‘both the characteristics of the accused and the details of the interrogation.’” State

v. McCoy, 692 N.W.2d 6, 27 (Iowa 2005) (citation omitted).

       In order to establish the voluntariness of a defendant’s inculpatory
       statements, the State must demonstrate from the totality of
       circumstances that the statements were the product of an essentially
       free and unconstrained choice, made by the defendant at a time
       when his will was not overborne nor his capacity for self-
       determination critically impaired.

State v. Hodges, 326 N.W.2d 345, 347 (Iowa 1982) (citation omitted). “No one

factor is determinative of the voluntariness of a confession which necessarily
                                          7

depends upon the totality of the circumstances of the individual case.” Id. at 348

(citation omitted). We “determine[] the facts surrounding the inculpatory statement,

assess[] their psychological impact on the defendant, and evaluate[] the legal

significance of the defendant’s reactions.” Id. (citation omitted). “Many factors

bear on the issue of voluntariness,” including “the defendant’s knowledge and

waiver of [their] Miranda rights”;1 “age, experience, prior record, level of education

and intelligence”; “the length of time defendant is detained and interrogated”;

“whether physical punishment was used, including the deprivation of food or

sleep”; “defendant’s ability to understand the questions”; “the defendant’s physical

and emotional condition and [their] reaction to the interrogation”; “whether any

deceit or improper promises were used in gaining the admissions”; and “any

mental weakness the defendant may possess.” Id. (citation omitted).

       1. Consideration of Common Law Evidentiary Test. Here, the State

contends the district court should not have relied on the common law evidentiary

test to suppress evidence because Hillery did not raise that ground for

suppression. We disagree. Hillery’s addendum to his initial motion to suppress

alleged he was improperly promised lenience. While he did not mention the

evidentiary test in his motion, at the suppression hearing Hillery provided the

district court with a number of case law citations to support his claim, several of

which dealt with the court’s common law approach to promises of leniency.

Moreover, in Howard, which Hillery cited to the district court, our supreme court



1 See Miranda v. Arizona, 384 U.S. 436, 471, 478–79 (1966) (establishing police
requirement to advise suspects of their Fifth Amendment rights before a custodial
interrogation).
                                           8


“directed district courts to ‘first employ the evidentiary test to determine the

admissibility of confessions challenged on grounds of a promise of leniency.’” 825

N.W.2d at 39 (quoting Madsen, 813 N.W.2d at 726 n.1). The court should consider

the constitutional challenge only if the evidentiary test does not require exclusion.

Madsen, 813 N.W.2d at 726 n.1.

       Because Hillery raised the common law evidentiary test as a basis for

suppression, it was proper for the district court to consider.

       2.   Were the Statements a Promise of Leniency?                Next, the State

maintains that even if the district court should have considered the common law

test, Officer Leitzen’s statements to Hillery did not constitute a promise of leniency

so the district court should not have granted the motion to suppress. Here, Officer

Leitzen testified that upon Hillery’s repeated denial of doing anything wrong or

buying any illegal substances, Officer Leitzen told him, “I’m looking more for your

cooperation to try and get your help to get into that place. . . . That’s not to say

that you’re not going to go to jail someday for this, but I’m not looking to take you

to jail today for it. I just want your cooperation.” We must determine whether this

statement was an improper promise of leniency.

       “An officer can tell a defendant that it is better to tell the truth without

crossing the line between admissible and inadmissible statements from the

defendant.” Polk, 812 N.W.2d at 674 (citation omitted). But the officer cannot

communicate to a defendant “that an advantage is to be gained by making a

confession.” Id. at 674–75. It is significant that an officer actually has the authority

to do what he tells the defendant, as opposed to promising a result or advantage

over which the officer truly has no control. See id. at 675. Here Officer Leitzen
                                          9


could choose not to arrest Hillery, thus it was action he could control. Where if the

officer had promised a lesser charge, for example, only the prosecutor would have

the authority to make the promise good.

       We do not think Officer Leitzen made an improper promise of leniency.

Officer Leitzen’s statement that he would not take Hillery to jail that day and wanted

Hillery’s cooperation to build a case against someone else was not language that

was likely to induce Hillery to make a false confession. The officer did not suggest

a prosecutor would decline to charge Hillery or would charge him only for a lesser

crime and he did not suggest Hillery would get a favorable sentence by confessing.

See, e.g., Howard, 825 N.W.2d at 41 (finding improper promise of leniency where

officer never overtly made such statements but the officer’s “line of question was

misleading by omission” because it “strategically planted in [the defendant’s] mind

the idea that he would receive treatment, and nothing more, if he confessed”); Polk,

812 N.W.2d at 676 (finding an improper promise of leniency where officer

suggested to the defendant that the county attorney was more likely to work with

him if he cooperated and “implicitly threatened . . . that silence will keep him from

his children for ‘a long time’”); State v. Kase, 344 N.W.2d 223, 226 (Iowa 1984)

(finding an improper promise of leniency when officers told the defendant no

criminal charges would be filed “if she told him what she knew about [the

decedent’s] death and signed a consent to search her apartment,” otherwise she

would be charged with murder); Hodges, 326 N.W.2d at 346, 349 (concluding

officers made improper promise of leniency by suggesting the “defendant would

receive better treatment and less severe punishment” if he confessed, where
                                          10


officers told defendant “there was a much better chance of him receiving a lesser

offense than first degree murder” if he talked to them).

       While Officer Leitzen’s statements share some similarities with the officer’s

statements in In re J.D.F., in which our supreme court found an improper promise

of leniency, there are also important distinctions. 553 N.W.2d 585, 589–90 (Iowa

1996). In J.D.F., an officer heard a call over the police radio of a juvenile carrying

a weapon. Id. at 587. He saw a juvenile matching the description and approached

him; after making contact with the juvenile, the juvenile fled. Id. When the officer

was able to apprehend the juvenile a short time later, he did not have a weapon.

Id. The juvenile denied ever having a weapon to the officer until the officer

“eventually told him that if he showed them its location, [the officer] would not take

him into custody at juvenile hall nor would he file charges against him.” Id. At that

point, the juvenile disclosed the location of the weapon. Id. Our supreme court

concluded, “Although the police apparently acted in good faith and did, in fact,

return [the juvenile] home, their promised lenience prejudiced” him. Id. at 589.

The court reached this conclusion even though “it was the county attorney who

later filed charges.” Id. Here, Officer Leitzen did not go as far as the officer in

J.D.F. Officer Leitzen did not say charges would not be filed against Hillery; he

only told him he would not take him to jail that day.

       Because Officer Leitzen’s statements accurately conveyed what he

intended to do and did not suggest he had more power in the process than he

actually did, we think his statements to Hillery are more akin to those of the officers

in State v. Whitsel, 339 N.W.2d 149 (Iowa 1983). In Whitsel, “detectives told [the

defendant] that they would recommend to the county attorney that [the defendant]
                                         11

receive psychiatric help and tell the county attorney of his cooperation.” Id. at 153.

“They emphasized, however, that they could not make any promises or give any

guarantees and would only relate to the county attorney what had been said.” Id.

It was then the defendant made his confession. Id. Our supreme court found that

an offer to inform the county attorney of the defendant’s cooperation, without

further assurance, is not an improper promise of leniency. Id. at 153–54.

       Officer Leitzen did not make an improper promise of leniency to Hillery, so

the district court should not have suppressed under the common law evidentiary

test. But that does not end our analysis. See Madsen, 813 N.W.2d at 726 n.1 (“If

the . . . court finds the evidentiary test does not require exclusion, it should still

employ the totality-of-the-circumstances test to ensure the State has met its

burden of establishing that defendant's confession was voluntary.”).

       B. Constitutional Grounds.

       1. Voluntariness of Statement. Hillery asks us to consider other grounds

for suppressing his incriminating statements and the physical evidence obtained.

As he did in his motion to suppress, Hillery argues his statements were

involuntarily made under the Fifth Amendment.2 See State v. Cromer, 765 N.W.2d


2 On appeal, Hillery also argues his rights were violated under article I, section 9
of the Iowa Constitution, and he asks us to “afford citizens greater protection of
their individual rights” under the Iowa Constitution than the Federal Constitution
currently does. See State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011)
(noting that “[a]lthough the Iowa Constitution does not contain an equivalent
provision against self-incrimination” like the Fifth Amendment to the United States
Constitution, our supreme court has “held such a right to be implicit in the ‘due
process of law’ guaranteed by Article I, section 9”). Specifically, Hillery contends
that in determining whether a defendant’s statement was made voluntarily under
the Iowa Constitution, we should take into consideration whether the defendant
was “apprised of his right to leave or end police questioning at any time.” But
Hillery neither cited article I, section 9 of the Iowa Constitution in his motion to
                                          12


1, 7 n.4 (Iowa 2009) (“A successful party in district court is not required to request

the district court to rule on alternative grounds raised, but not relied upon by the

district court in making its ruling, to assert those grounds in support of affirming the

ruling of the district court when appealed by the opposing party.”).

       “We utilize a dual test in determining the admissibility of a defendant’s

inculpatory statements over a [F]ifth [A]mendment challenge.”                 State v.

Countryman, 572 N.W.2d 553, 557 (Iowa 1997). “We first determine whether

Miranda warnings were required and, if so, whether they were properly given.” Id.

“Second, we ascertain whether the statement is voluntary and satisfies due

process.” Id.

       As to the first step, “Miranda warnings are not required unless there is both

custody and interrogation.”     Id.   “The custody determination depends on the

objective circumstances of the interrogation, not on subjective views harbored

either by the officer or the person being questioned.” The ultimate question “is

simply whether there was ‘a formal arrest or restraint on freedom of movement’ of

the degree associated with a formal arrest.” Id. (citation omitted). “In deciding

whether a suspect is in custody at a given time, ‘we examine the extent of the

restraints placed on the suspect during the interrogation in light of whether ‘a

reasonable [person] in the suspect’s position would have understood his situation’

to be one of custody.’” State v. Tyler, 867 N.W.2d 136, 172 (Iowa 2015) (citation

omitted). In making that determination, we consider four factors: “(1) the language




suppress nor made this argument to the district court. Therefore, we only consider
his claim regarding the voluntariness of his statement under the framework of the
Federal Constitution.
                                         13


used to summon the individual; (2) the purpose, place, and manner of

interrogation; (3) the extent to which the defendant is confronted with evidence of

her guilt; and (4) whether the defendant is free to leave the place of questioning.”

Countryman, 572 N.W.2d at 558.

       It is undisputed that Officer Leitzen did not give Hillery Miranda warnings,

so if we find Hillery was subjected to custodial interrogation, any admissions he

made must be suppressed. See State v. Miranda, 672 N.W.2d 753, 759 (Iowa

2003) (“If this prophylactic measure [of giving Miranda warnings] is not carried out,

evidence obtained as a result of a custodial interrogation is inadmissible.”).

       Here, Officer Leitzen initiated the interaction by calling to Hillery from his

parked car and asking Hillery if he could speak with him. As Hillery continued

walking up the hill, Officer Leitzen exited his car, eventually walking up to Hillery

with his badge out, and told Hillery he needed to stop. By this point, Officer Leitzen

smelled unburnt marijuana coming from Hillery’s person. When Hillery continued

to walk, Officer Leitzen stepped in front of Hillery, preventing him from walking

further. We understand this action to be a Terry stop. See Terry v. Ohio, 392 U.S.

1, 22 (1968); State v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013) (“Our decisions

have universally held that the purpose of a Terry stop is to investigate crime.”); see

also State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (holding that, to justify a

Terry stop, “the police need only have reasonable suspicion, not probable cause,

to believe criminal activity has occurred or is occurring”). “[T]he temporary and

relatively nonthreatening detention involved in a traffic stop or Terry stop does not

constitute Miranda custody.”     Maryland v. Shatzer, 559 U.S. 98, 113 (2010)

(citations omitted).
                                         14

       So the question is whether something occurred during the Terry stop to

convert the encounter to one involving custody requiring Miranda. See State v.

Schlitter, 881 N.W.2d 380, 407 (Iowa 2016) (Appel, J., concurring in part and

dissenting in part) (recognizing “the evolution of interrogation from ordinary fact-

finding into a highly confrontational and accusatorial proceeding converts a

voluntary encounter into a custodial interrogation”).      We conclude it did not.

Although at one point after handing the officer crack cocaine, Officer Leitzen

chased and grabbed Hillery after Hillery pushed his bicycle into him and took off

running, none of the other factors support a finding of custody. Officer Leitzen and

Hillery were standing on a public sidewalk during the afternoon. See State v. Scott,

518 N.W.2d 347, 350 (Iowa 1994) (concluding the defendant was not in custody

for Miranda purposes when “the investigatory stop was temporary and brief,” [t]he

officers followed routine procedures during the pat-down search,” and “[t]he stop

and search was conducted in public”). As we said, Officer Leitzen initiated the

interaction by asking Hillery if he could speak with him. While he eventually

indicated to Hillery that he was sure Hillery bought something, Officer Leitzen did

not offer any further evidence of Hillery’s guilt. And while the officer did not tell

Hillery he could leave or end the interaction, Officer Leitzen told Hillery more than

once that he was not going to take him to jail that day, implying that Hillery was not

under arrest. After Hillery ran from him, Officer Leitzen chased Hillery and grabbed

him. At that point, the officer again assured Hillery he was not going to take him

to jail, and Hillery agreed to cooperate and then returned to the area on the

sidewalk they had been standing. We acknowledge Officer Leitzen prevented

Hillery from fleeing, but Hillery was not handcuffed or placed in the officer’s car.
                                          15

Compare J.D.F., 553 N.W.2d at 587 (concluding the juvenile was clearly in custody

when, after the juvenile fled, he was apprehended, handcuffed, and placed in the

back of the squad car). The fact that Hillery was not allowed to control when the

Terry stop ended does not mean Hillery, who was otherwise free to move about,

was in police custody.

       Because Hillery was not in custody, there is no basis to suppress his

statements on the basis of not receiving Miranda warnings.

       Next, we must consider the separate claim whether his statements were

involuntarily given.     “We employ the totality-of-the-circumstances test in

determining voluntariness: it must appear the statements were the product of ‘an

essentially free and unconstrained choice, made by the defendant whose will was

not overborne or whose capacity for self-determination was not critically impaired.”

Countryman, 572 N.W.2d at 558. After a seemingly short interaction with Officer

Leitzen, while he was otherwise unrestrained and in a public setting during the day,

Hillery made incriminating statements. We recognize Officer Leitzen first told

Hillery he would not take him to jail that day, but Hillery was not coerced or under

duress at the time he made the statements. See Hodges, 326 N.W.2d at 348

(outlining the “[m]any factors [that] bear on the issue of voluntariness”). Hillery did

not make any requests of Officer Leitzen, and he seemed to understand what was

occurring during the interaction. Hillery’s incriminating statements were voluntarily

made, so we will not suppress them under the Fifth Amendment.

       2.   Consent to Search.     Hillery argues his consent to search was not

voluntarily given. See, e.g., State v. Pals, 805 N.W.2d 767, 777 (Iowa 2011) (“[T]he

standard for determining the validity of a consent to search is whether the consent
                                         16


was voluntarily given and not a result of duress or coercion, expressed or

implied.”). But no search occurred here. See State v. Grant, 614 N.W.2d 848,

852–53 (Iowa Ct. App. 2000) (providing the Fourth Amendment “secures the right

of the people to be free from unreasonable government searches,” and one’s

expectation of privacy protected by the Fourth Amendment “is applicable only to

the unwarranted actions of government actors”). Hillery grabbed the crack cocaine

out of his own pocket and dropped it in Officer Leitzen’s hand. A little later on,

Hillery also turned over a bag of marijuana to the officer.3

       IV. Conclusion.

       Because the officer did not make an impermissible promise of leniency to

Hillery, we reverse the suppression of incriminating statements and evidence

obtained on the basis of the common law evidentiary rule. We have considered

Hillery’s alternative grounds for suppression and find them without merit. We

reverse the district court ruling granting the motion to suppress and remand for

further proceedings.

       REVERSED AND REMANDED.




3 While Hillery was certainly seized by Officer Leitzen, Hillery makes no argument
on appeal that the seizure violated his constitutional rights. See State v. Kreps,
650 N.W.2d 636, 641 (Iowa 2002) (noting short stops made for investigatory
purposes, “even though temporary and for a limited purpose—is a ‘seizure’ within
the meaning of the Fourth Amendment. Because the stop is a seizure, it is subject
to the ‘constitutional imperative that it not be “unreasonable” under the
circumstances’” (citations omitted)).
