               IN THE SUPREME COURT OF IOWA
                               No. 14–2104

                        Filed November 18, 2016

                      Amended November 29, 2016


STATE OF IOWA,

      Appellee,

vs.

PATRICK DANIEL WHITE,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Johnson County,

Marsha A. Bergan, Judge.



      The defendant seeks further review of a court of appeals decision

affirming the denial of a motion to suppress evidence.       DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED.



      Davis L. Foster of Foster Law Office, P.C., Iowa City, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, Janet M. Lyness, County Attorney, and Elizabeth

Dupuich, Assistant County Attorney, for appellee.
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PER CURIAM.

      This appeal presents the question whether a seizure occurred

when a police officer pulled his patrol car into a defendant’s driveway

with its emergency lights flashing, approached the defendant on foot, and

directed the defendant to step down from his front porch onto the

driveway. The district court denied the defendant’s motion to suppress

finding no seizure. A divided panel of the court of appeals affirmed. On

our de novo review, we conclude the interaction was not consensual and

therefore vacate the decision of the court of appeals, reverse the district

court judgment, and remand the case for further proceedings.

      I. Factual and Procedural Background.

      On October 7, 2013, police officer Alex Stricker was dispatched at

approximately 11:30 p.m. in response to a reported hit-and-run collision.

Because the caller provided a license plate number and description of the

fleeing vehicle, Officer Stricker began driving toward the address listed

on that vehicle’s registration.

      As Officer Stricker approached the home in his patrol car, he saw a

vehicle backed into an open garage that matched the description of the

vehicle reportedly involved in the collision.    Officer Stricker saw the

defendant, Patrick White, standing outside the driver’s side door of the

vehicle.    Officer Stricker observed White leave the garage and begin

walking toward the front door of the home. As White stepped onto his

front porch, Officer Stricker pulled into the driveway, activated his

emergency lights, and parked his patrol car.

      White did not go inside his home and instead remained on the

porch.     Officer Stricker exited the patrol car and started asking White

questions. Officer Stricker was in uniform and displayed a badge and

firearm. Officer Stricker then asked, “Can you step down here and talk
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to me?” Receiving no immediate response, Officer Stricker took one step

onto the porch and said, “I need you to step down here and talk to me,

OK?”    White followed Officer Stricker back onto the driveway.     Officer

Stricker used a flashlight on the ground to show where he wanted White

to proceed.

       Officer Stricker then questioned White about the reported collision.

Officer Stricker detected the scent of an alcoholic beverage and noticed

other signs of intoxication.   White admitted to having consumed three

drinks after work. Officer Stricker asked White to perform field sobriety

tests in the driveway.   Based on the results of those tests, White was

arrested for operating while intoxicated.

       White was charged by trial information with operating while

intoxicated, third offense, a class “D” felony.          See Iowa Code

§ 321J.2(2)(c) (2013).   White filed a motion to suppress any evidence

obtained after Officer Stricker directed him to step off the porch and onto

the driveway.     White argued the officer’s conduct amounted to an

unlawful seizure in violation of his rights under the Fourth Amendment

to the United States Constitution and article I, section 8 of the Iowa

Constitution.

       Following a hearing, the district court denied White’s motion to

suppress.     The court rejected White’s constitutional argument that he

was seized by Officer Stricker on his front porch, finding instead that “a

reasonable person would not have felt compelled to yield to Officer

Stricker’s request and statement to step off the porch to the driveway to

speak with the officer.” The court reasoned,

       Officer Stricker did not act to compel Mr. White to step down
       to the driveway. Officer Stricker was the only officer at the
       scene at that time. He had not drawn his weapon. He did
       not shine a flashlight in Mr. White’s face. He did not touch
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         Mr. White. He did not speak in a loud or demanding tone.
         He made no threats. Mr. White was close to the door of his
         house. He is a larger man than Officer Stricker. He was at
         his home. Mr. White could have turned around and entered
         the house and locked the door. The Court finds that,
         instead, Mr. White chose to step down to the driveway as
         requested just as he had earlier chosen not to enter his
         home when the squad car pulled into the driveway.

         Following a trial to the court on the minutes of testimony, White

was convicted of operating while intoxicated, third offense.       He was

sentenced to a term of incarceration not to exceed five years with all but

thirty days suspended and was placed on probation for a period of three
years.

         White appealed, arguing that his motion to suppress should have

been granted. We transferred the case to the court of appeals. The court

of appeals affirmed.      It essentially agreed with the district court and

determined that “[u]p to the point where Officer Stricker observed White

exhibiting signs of intoxication, the interaction between Officer Stricker

and White was consensual and not a ‘seizure.’ ” One judge on the court

of appeals panel dissented.

         We granted White’s application for further review.

         II. Standard of Review.

         “We review alleged violations of the right to be free from

unreasonable searches and seizures de novo.”          State v. Lindsey, 881

N.W.2d 411, 415 (Iowa 2016).        “In conducting our de novo review, we

independently evaluate the totality of the circumstances as shown by the

entire record.” Id. “[W]e will give deference to the factual findings of the

district court, but we are not bound by them.”          State v. Lowe, 812

N.W.2d 554, 566 (Iowa 2012). Notably, in this case, the moment when

White contends he was seized was recorded by a dash cam in Officer

Stricker’s patrol car.
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      III. Analysis.

      The Fourth Amendment to the United States Constitution provides

that “[t]he right of the people to be secure in their persons . . . against

unreasonable searches and seizures, shall not be violated.” U.S. Const.

amend. IV. Article I, section 8 of the Iowa Constitution also guarantees

the   right   of   Iowans   “to   be   secure   in    their   persons . . . against

unreasonable seizures and searches.”            Iowa Const. art. I, § 8.      “We

jealously guard our right to construe a provision of our state constitution

differently than its federal counterpart, though the two provisions may

contain nearly identical language and have the same general scope,

import, and purpose.”       State v. Jackson, 878 N.W.2d 422, 442 (Iowa

2016). Nevertheless, it is only necessary to reach the Fourth Amendment

to decide this appeal. As we have recognized,

             The     Fourth     Amendment’s   protection    against
      unreasonable intrusions on a person’s liberty arises when an
      officer seizes a person. A seizure occurs when an officer by
      means of physical force or show of authority in some way
      restrains the liberty of a citizen.

State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004) (quoting State v.

Pickett, 573 N.W.2d 245, 247 (Iowa 1997)).
      “Whether a ‘seizure’ occurred is determined by the totality of the

circumstances.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008) (citing

United States v. Drayton, 536 U.S. 194, 207, 122 S. Ct. 2105, 2113, 153

L. Ed. 2d 242, 255 (2002)).       “The Supreme Court has long recognized

that not all police contacts with individuals are deemed seizures within

the meaning of the Fourth Amendment.”                State v. Smith, 683 N.W.2d

542, 546 (Iowa 2004) (quoting Pliska v. City of Stevens Point, 823 F.2d

1168, 1175 (7th Cir. 1987)); cf. Reinders, 690 N.W.2d at 82 (“Police

questioning by itself, however, is generally not a seizure.”).               Such
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encounters remain consensual “[s]o long as a reasonable person would

feel free ‘to disregard the police and go about his business.’ ” Lowe, 812

N.W.2d at 570 (alteration in original) (quoting Smith, 683 N.W.2d at 547).

We have recognized the presence of several factors that might suggest a

seizure has occurred, which include

      the threatening presence of several officers, the display of a
      weapon by an officer, some physical touching of the person
      of the citizen, or the use of language or tone of voice
      indicating that compliance with the officer’s request might be
      compelled.

Wilkes, 756 N.W.2d at 842–43 (quoting United States v. Mendenhall, 446

U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)

(plurality opinion)). In other words, “objective indices of police coercion

must be present to convert an encounter between police and citizens into

a seizure.” Id. at 843; see also State v. Gully, 346 N.W.2d 514, 517 (Iowa

1984) (“[T]here must be something uttered or done which would amount

to an objective indication that the officer exercised some dominion over

the person seized.”).

      On our de novo review, having considered the suppression hearing

testimony and the video evidence, and giving appropriate deference to the
findings of the district court, we conclude that White was seized within

the meaning of the Fourth Amendment when Officer Stricker directed

White to step off of the front porch and onto the driveway. We reach this

conclusion for several reasons.

      First, the flashing red and blue emergency lights on the top of

Officer Stricker’s patrol car remained on from the time Officer Stricker

pulled into White’s driveway until the time the field sobriety test was

later conducted.   While we have recognized that the use of emergency

lights is not per se coercive, we have observed that emergency lights,
                                     7

unlike ordinary headlights, can be coercive in the sense that they “invoke

police authority and imply a police command to stop and remain.”

Wilkes, 756 N.W.2d at 844; see also State v. Kurth, 813 N.W.2d 270,

280–81 (Iowa 2012) (discussing an officer’s activation of his patrol car’s

emergency lights).

      Second, Officer Stricker parked his vehicle in the middle of White’s

driveway before approaching White on foot.       The patrol car blocked

White’s vehicle in the garage and was parked approximately ten to fifteen

feet from the front porch. In the past, we have considered the location of

a patrol car in relation to the defendant’s vehicle.     See Wilkes, 756

N.W.2d at 844; see also Kurth, 813 N.W.2d at 277.

      Third, after Officer Stricker approached White in uniform while

displaying a badge and firearm, he asked—and then insisted—that White

return to his driveway and talk to him: “I need you to step down here and

talk to me, OK?” The officer’s tone and step onto the defendant’s front

porch would have indicated to a reasonable person that he could not

proceed into his home and that compliance with Officer Stricker’s

directive was now mandatory—especially in conjunction with the flashing

emergency lights and nearby patrol car. This result is consistent with

Fourth Amendment caselaw. Compare I.N.S. v. Delgado, 466 U.S. 210,

219–21, 104 S. Ct. 1758, 1764–65, 80 L. Ed. 2d 247, 257–58 (1984)

(concluding that no seizure occurred where federal agents “only

question[ed] people” and took no additional steps to obtain answers), and

Lowe, 812 N.W.2d at 571 (reasoning that no seizure occurred in part

because   “[t]here   were   no   ‘commands’ ”   and   “only   requests   for

information”), with Florida v. Royer, 460 U.S. 491, 494, 501–02, 103

S. Ct. 1319, 1322, 1326, 75 L. Ed. 2d 229, 234, 239 (1983) (finding that

a seizure occurred when two officers’ request “to accompany them to a
                                          8

room” from a public concourse was made in conjunction with an

indication that the defendant was not free to leave), United States v.

Beauchamp, 659 F.3d 560, 566–67 (6th Cir. 2011) (concluding that, after

the defendant had twice indicated he did not want to speak with police, a

seizure occurred once he was instructed to “turn around and walk

toward the officer”), United States v. Palmer, 603 F.2d 1286, 1288–89 &

n.4 (8th Cir. 1979) (finding that an officer’s second request to speak with

an individual was “command,” based on “the tone of voice [the officer]

used,” and amounted to a seizure), and Parker v. Commonwealth, 496

S.E.2d 47, 51 (Va. 1998) (concluding that a seizure within the meaning of

the Fourth Amendment occurred when the officer drove his police cruiser

from the street onto private property and stopped the cruiser “at the

location where the defendant was standing”).

       For the foregoing reasons, we conclude that Officer Stricker seized

White near the commencement of their encounter.                      This does not

necessarily mean the motion to suppress should have been granted.

Additional arguments were presented below that a seizure of White would

have   been    justified   based    on    the   report   he    had    committed     a

misdemeanor.       However, the State does not present them to us as

grounds for affirmance so we decline to address them. 1

       IV. Conclusion.

       For the reasons stated above, we conclude that White was seized in

violation of the Fourth Amendment to the United States Constitution at

the time when Officer Stricker directed White to step off of the front

porch and onto the driveway.          We therefore vacate the decision of the


       1The State does argue in a paragraph of its brief that any error in denying the
motion to suppress would have been harmless beyond a reasonable doubt. However,
we are not persuaded on this record.
                                   9

court of appeals, reverse the district court judgment, and remand the

case for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      This opinion shall be published.
