                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1184
                           Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNNY LEE MCFADDEN, JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      Johnny McFadden appeals his conviction of possession of a controlled

substance with intent to deliver. REVERSED AND REMANDED.



      Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                           2


VAITHESWARAN, Presiding Judge.

       Johnny McFadden appeals his conviction for possession of a controlled

substance (marijuana) with intent to deliver. He argues the district court should

have granted his motion to suppress evidence gained in a stop of his vehicle and

search of a backpack inside the vehicle.

I.     Background Facts and Proceedings

       The pertinent facts may be gleaned from the suppression transcript, a

police dash-camera recording of the traffic stop, and audio clips captured on an

officer’s body microphone. Those facts are as follows.

       A “summer enforcement team” with the Des Moines Police Department

followed a vehicle through several turns and stopped it in the driveway of a

house for having “a film on the license plate” that “kind of interfered with [his]

headlights and created a glare,” rendering one of the letters “on the license plate

. . . not clearly legible.”   An officer “[m]ade contact with the driver, Johnny

McFadden, and asked for his driver’s license, registration, and insurance.” He

observed two adult men inside and “a backpack wedged between the front seat

passenger seat.” The officer found the presence of the backpack “odd” because

there were no children in the car. He wanted “to learn what was inside the

backpack.”   The officer returned to his vehicle and performed a license and

registration check. During his conversation with one of the other officers, he

mentioned the backpack between the “two grown men” and wryly said he thought

they had “been out of school for a while.” The officer completed the record

checks, which revealed that McFadden had a valid license and no outstanding

warrants.
                                           3


         The officer returned to the vehicle McFadden was driving.         His body

microphone was off and the driver’s side of the vehicle was out of view of the

dash camera. According to the officer’s testimony at the suppression hearing, he

“asked [McFadden] for consent to look inside the backpack or asked him what

was inside the backpack.”         McFadden “denied [him] consent.”       The officer

characterized McFadden as “very nervous,” with “the artery on the left side of his

neck . . . pulsating,” a sharp contrast to his “calm, cool, and collected” demeanor

up to that point. He found this change in his demeanor “suspicious.” At this

point, the officer’s partner jokingly chimed in, “[U]nless it contains a heater or a

pound of drugs, you won’t have anything to worry about.” McFadden responded

that the backpack contained six pounds of marijuana.

         The officers removed McFadden from the vehicle, handcuffed him, and

searched the vehicle and backpack. They discovered “six tightly compressed

bricks of marijuana” in the backpack.

         The State charged McFadden with possession of a controlled substance

(marijuana) with intent to deliver.      See Iowa Code § 124.401(1)(d) (2015).1

McFadden filed a motion to suppress the evidence. Following the suppression

hearing, the district court denied the motion.

         McFadden waived his right to a jury trial and stipulated to a bench trial on

the minutes of testimony.        The district court found him guilty and imposed

sentence. This appeal followed.




1
    An associated tax-stamp charge was dismissed.
                                         4


II.    Analysis

       McFadden argues (1) the officers’ initial stop of the vehicle was

unsupported by probable cause or reasonable suspicion and (2) the stop was

unconstitutionally prolonged. “‘When a defendant challenges a district court’s

denial of a motion to suppress based upon the deprivation of a state or federal

constitutional right, our standard of review is de novo.’”     State v. Storm, 898

N.W.2d 140, 144 (Iowa 2017) (quoting State v. Brown, 890 N.W.2d 315, 321

(Iowa 2017)).

       A.       Initial Stop

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

section 8 of the Iowa Constitution “prohibit unreasonable searches and seizures

by the” State. State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). “A traffic stop is

unquestionably a seizure under the Fourth Amendment.” Id. at 292. Generally,

the traffic stop will be deemed reasonable “where the police have probable cause

to believe that a traffic violation has occurred.” State v. Pals, 805 N.W.2d 767,

773 (Iowa 2011) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)).

       The summer enforcement team stopped the vehicle driven by McFadden

because of the grime-covered, partially-illegible license plate.       A dirty plate

constitutes a traffic violation. See Iowa Code § 321.38 (“Every registration plate

shall at all times . . . be maintained free from foreign materials and in a condition

to be clearly legible.”). The violation afforded the officers probable cause to stop

the vehicle. See State v. Klinghammer, No. 09-0577, 2010 WL 200058, at *5

(Iowa Ct. App. Jan. 22, 2010) (affirming finding of probable cause where “the

officer was stopped directly behind the vehicle and observed that the license
                                          5

plate was obstructed such that he could not read all of it”); State v. Peden, No.

08-1039, 2009 WL 606236, at *1 (Iowa Ct. App. Mar. 11, 2009) (same); State v.

Miller, No. 02-0965, 2003 WL 22015974, at *1 (Iowa Ct. App. Aug. 27, 2003)

(same).

       B.     Prolonged Detention

       The United States Supreme Court recently held “a police stop exceeding

the time needed to handle the matter for which the stop was made violates the

Constitution’s shield against unreasonable seizures.”          Rodriguez v. United

States, 135 S. Ct. 1609, 1612 (2015). The Court continued, “A seizure justified

only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is

prolonged beyond the time reasonably required to complete th[e] mission’ of

issuing a ticket for the violation.” Id. (alterations in original) (quoting Illinois v.

Caballes, 543 U.S. 405, 407 (2005)); accord In re Property Seized from Pardee,

872 N.W.2d 384, 392 (Iowa 2015) (citation omitted). Relying on this holding,

McFadden argues the officers prolonged the stop beyond the period reasonably

necessary to complete its purpose and without reasonable suspicion. On our de

novo review of this constitutional issue, we agree.

       As noted, the stop was based on the license-plate violation. The officer

who testified at the suppression hearing conceded as much, answering “Yes” to

the question whether “the sole basis for the stop was” the illegibility of the plate.

Based on the traffic violation, the officer could “determin[e] whether to issue a

traffic ticket” and could make “ordinary inquires incident to the [traffic] stop,” such

as “checking the driver’s license, determining whether there [were] outstanding

warrants against the driver, and inspecting the automobile’s registration and
                                           6

proof of insurance.”      Rodriguez, 135 S. Ct. at 1615 (second alteration in

original).2

       At 9:24 p.m., the testifying officer asked if the occupants knew people

inside the house where they were stopped. He received verbal confirmation from

another officer that McFadden did indeed know the residents. By 9:26 p.m., the

officer returned to his police cruiser and began running records checks. At 9:29

p.m., he received confirmation that McFadden “had a valid driver’s license.”

       It is clear from this timeline that the purpose of the stop ended within five

minutes. See id. at 1614 (“Because addressing the infraction is the purpose of

the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’”

(alteration in original) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)));

Pardee, 872 N.W.2d at 392.          Again, the officer conceded as much.           After

confirming that the registration and warrant checks showed nothing problematic,

he was asked, “So at that point, all of the information that you needed you had,

and you had obtained as it related to the traffic stop itself. Would you agree with

that . . . ?” The officer responded, “Yes.” While he testified that he intended to

write warning tickets for the license plate violation and McFadden’s failure to

have proof of insurance, the officer did not proceed with these tasks.              See

Rodriguez, 135 S. Ct. at 1614 (“Authority for the seizure thus ends when tasks

tied to the traffic infraction are—or reasonably should have been—completed.”);

Pardee, 872 N.W.2d at 396 (“Trooper Vander Weil had all the information he

2
  The State argues the officer’s request “for consent to search the backpack” was “an
ordinary inquiry incident to [the traffic] stop.” See Rodriquez, 135 S. Ct. at 1615.
Rodriguez made a distinction between traffic-related inquiries and criminal interdiction.
See id. The officer’s request to search the backpack fell on the side of criminal
interdiction.
                                            7


needed to prepare warnings and had told the vehicle occupants he was only

going to issue warnings” and “he could have gone back to his patrol car at that

point and completed his traffic-related mission . . . .”). Instead, in his own words,

he “went back up [to the vehicle] to make contact with [McFadden] to ask for

consent to look inside the backpack.” This task was entirely unrelated to the

traffic violation. Cf. Rodriquez, 135 S. Ct. at 1615-16 (noting a dog sniff is “aimed

at ‘detect[ing] evidence of ordinary criminal wrongdoing,’” “[l]ack[s] the same

close connection to roadway safety as the ordinary inquires,” is “not fairly

characterized as part of the officer’s traffic mission,” and “detour[ed] from that

mission” (first alteration in original) (citations omitted)).

       We recognize an officer “may conduct certain unrelated checks during an

otherwise lawful traffic stop.” Id. at 1615; Pardee, 872 N.W.2d at 393 (citation

omitted). But “he [or she] may not do so in a way that prolongs the stop, absent

the reasonable suspicion ordinarily demanded to justify detaining an individual.”

Rodriguez, 135 S. Ct. at 1615; accord State v. Coleman, 890 N.W.2d 284, 285

(Iowa 2017) (“[T]he stop must end when reasonable suspicion is no longer

present.”); see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s

inquiries into matters unrelated to the justification for the traffic stop do not

convert the encounter into something other than a lawful seizure, so long as

those inquiries do not measurably extend the duration of the stop.”). Reasonable

suspicion requires the stopping officer to have “specific and articulable facts,

which taken together with rational inferences from those facts,” lead the officer

“to reasonably believe criminal activity may have occurred.” State v. Tague, 676

N.W.2d 197, 204 (Iowa 2004); accord Illinois v. Wardlow, 528 U.S. 119, 123
                                           8


(2000). “Mere suspicion, curiosity, or hunch of criminal activity is not enough.”

Tague, 676 N.W.2d at 204; accord Wardlow, 528 U.S. at 123-24 (“The officer

must be able to articulate more than an ‘inchoate and unparticularized suspicion

or “hunch” of criminal activity.’” (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))).

       The State argues “three circumstances” generated reasonable suspicion

to ask to search McFadden’s backpack: (1) the “high crime neighborhood,” (2)

“the series of turns in quick succession” before the vehicle pulled into the

driveway, and (3) the backpack “in the car on a weekend night with two grown

men and no children.”

       The high crime neighborhood did not alone generate reasonable

suspicion. See, e.g., Wardlow, 528 U.S. at 124 (“An individual’s presence in an

area of expected criminal activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is committing a crime.”);

State v. Martinez-Felix, No. 2 CA-CR 2016-0213, 2017 WL 3585072, at *6 (Ariz.

Ct. App. Aug. 18, 2017) (“‘[T]he fact that the encounter occurred in a high-crime

neighborhood was insufficient,’ given there was ‘no indication that [Martinez–

Felix] was involved in a crime or posed an imminent threat to the officers.’”

(second alteration in original) (citation omitted)); State v. Miller, 795 S.E.2d 374,

379 (N.C. Ct. App. 2016) (stating “[officer’s] observation of the vehicle in a high-

crime area is not sufficient, either by itself or in conjunction with the other ‘factors’

identified by the State, to establish reasonable suspicion of criminal activity”),

appeal docketed, 802 S.E.2d 732 (N.C. 2017). As for the number of turns made

by the vehicle before arriving at its destination, the video reveals three turns in

the span of a minute and McFadden’s arrival at a home that an officer confirmed
                                           9


was the home of a friend. The officer also testified McFadden drove “cautiously

because there was a police officer behind him.”

         We are left with the backpack that initially “sparked” the officer’s interest

based on its position between “two grown men.”           If a backpack in a vehicle

without children amounts to reasonable suspicion of criminal activity, a large

segment of the traveling public could be subjected to warrantless searches. As

one court stated, “While we are considerate of law enforcement’s experience with

backpacks in drug transactions, the very common occurrence of having a

backpack in a vehicle and the multitude of innocent uses for a backpack in a

vehicle renders the presence of a backpack in Spears's vehicle of little

persuasive value.” United States v. Spears, 636 F. App’x 893, 904 (5th Cir.

2016).

         Anticipating a conclusion that the factors immediately following the stop

may not have generated reasonable suspicion, the State falls back on

McFadden’s “response to [the officer’s] backpack inquiry.”               McFadden’s

nervousness did not generate reasonable suspicion to justify the search of the

backpack.     First, if McFadden was nervous—a fact we cannot independently

confirm given the position of the dash camera—his nervousness manifested itself

after the officer unconstitutionally prolonged the stop. Second, assuming this

factor may be considered in the reasonable suspicion analysis, McFadden was

calm and forthcoming when he was removed from the vehicle and was placed in

front of the camera, and the officer conceded he was very cooperative. See

Pardee, 872 N.W.2d at 394 (“The video recordings of the stop also tend to dispel

any impression that the occupants were unusually apprehensive . . . .”). Finally,
                                       10


a vehicle occupant’s nervousness on being stopped by a group of police officers

should come as no surprise. See United States v. Guerrero, 374 F.3d 584, 590

(8th Cir. 2004) (“[I]t cannot be deemed unusual for a person to exhibit signs of

nervousness when confronted by an officer.”); United States v. Beck, 140 F.3d

1129, 1139 (8th Cir. 1998) (same).

      We conclude none of the cited factors alone or in combination generated

reasonable suspicion to ask McFadden about the backpack after the traffic-

related purpose of the stop was completed.       The officers unconstitutionally

prolonged the detention.

      In reaching this conclusion, we have considered the fact that only four

minutes elapsed between completion of the traffic-related tasks and the search of

the backpack. This time period was shorter than the “seven or eight minutes”

that elapsed in Rodriquez. See Rodriguez, 135 S. Ct. at 1613, 1615-16. Even

so, the Court rejected the notion that a de minimus violation is allowed. Id. The

Court stated, “The Government’s argument, in effect, is that by completing all

traffic-related tasks expeditiously, an officer can earn bonus time to pursue an

unrelated criminal investigation.” Id. at 1616. “The reasonableness of a seizure,

however, depends on what the police in fact do.” Id. In this case, the officer

sought consent to search the backpack after the purpose of the stop ended. This

was impermissible whether it took four minutes or forty minutes. See United

States v. Ward, No. 16-cr-00485-JST-1, 2017 WL 1549474, at *3-4 (N.D. Cal.

May 1, 2017) (“[T]he fact that Officer Meads’ questions may only have lasted a

few minutes does not make them lawful. . . . [T]he search of Ward’s person and

car only occurred because of Officer Meads' impermissible questioning.
                                           11


Especially taken together, the questioning and searches measurably extended

the duration of Ward’s traffic stop.”).

         But, even if the officer’s request for consent to search the backpack was

permissible, McFadden denied consent. At this juncture, the officer should have

proceeded to issue the citations and should have terminated the stop. Instead,

he continued to seek access to the backpack, eventually obtaining an admission

from McFadden about its contents.

         We   have     asked   ourselves   whether   this   admission   vitiated   the

unconstitutional extension of the stop. We are persuaded it did not. To conclude

otherwise would undermine the holding of Rodriguez.           See Ward, 2017 WL

1549474, at *4 (“If the rule in Rodriguez . . . is to have any force, the police

cannot prolong a driver’s detention for the purpose of eliciting consent for a

search to uncover ordinary criminal activity and then rely on that consent to

excuse the length of the stop.”).

         This court addressed a similar situation in an opinion predating Rodriguez.

See generally State v. Scanlon, No. 12-0741, 2013 WL 988785 (Iowa Ct. App.

Mar. 13, 2013). There, an officer stopped a vehicle for an equipment violation,

checked records, which uncovered a drug conviction, and asked the defendant if

he could search the vehicle. The defendant responded, “No, I’d prefer you didn’t

look.”    Id. at *1.   The officer then asked if had “weed” and the defendant

responded, “Um, yea.” Id. at *1-2. The officer searched the vehicle. Id. at *2.

         The defendant argued the officer lacked reasonable suspicion to continue

to detain him to conduct a narcotics investigation. Id. After noting that a seizure

had to be limited in both scope and duration, this court stated the issue raised by
                                            12

Scanlon “relate[d] to the scope of the seizure.”          Id. at *3. Nonetheless, we

explained “if the scope or authority of the officer is exceeded, the duration of the

seizure is unlawful.” Id.; cf. State v. Campbell, No.15-1772, 2017 WL 706208, at

*5-6 (Iowa Ct. App. Feb. 22, 2017) (distinguishing between scope and duration

tests). We rejected the State’s assertion that the traffic violation had yet to be

resolved when the officer sought the defendant’s consent to search the vehicle

and concluded the defendant “had a right to refuse to consent to a search and

did so,” “[a]t that point or earlier, [he] should have been free to leave,” and his

“detention after this point was unreasonable.” Scanlon, 2013 WL 988785, at *4.

Although the court did not have the benefit of Rodriguez, Scanlon is persuasive

authority     for   a   conclusion   that   McFadden’s     admission   following   the

unconstitutionally prolonged stop did not justify the search of his backpack.3

         Because the officers unconstitutionally prolonged the traffic stop, evidence

gained in the search should have been suppressed. We reverse the suppression

ruling and remand for further proceedings consistent with this opinion.

         REVERSED AND REMANDED.




3
    McFadden does not challenge the voluntariness of his consent.
