                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0133
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN WILLIAM NESS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.



      A defendant appeals from his convictions and sentences for operating

while intoxicated, second offense, and assault. AFFIRMED.



      John P. Beauvais Jr. of Deck Law, L.L.P., Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Linda J.

Hines, Assistant Attorneys General, for appellee.



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

      John Ness appeals from his convictions and sentences for assault and

operating while intoxicated, second offense. Ness maintains the district court

should have granted his motion to suppress because an officer entered his home

and arrested him without a warrant and without an applicable exception to the

warrant requirement.   Ness also maintains the district court should not have

allowed a witness’s deposition to be read into evidence because the State had

not proven she was “unavailable.”

I. Background Facts and Proceedings

      On April 3, 2014, at 7:29 p.m., an employee from the Tobacco Hut called

local police and reported that approximately three minutes earlier, a patron had

attempted to purchase alcohol at their drive-through and had hit the building.

The employees refused to sell the man alcohol and he drove away. As he did

so, the man had “peeled out” of the driveway. The reporting employee was

concerned because she believed the man was intoxicated. She described the

man’s vehicle as well as the license plate number, and an officer was dispatched

to the scene.

      At 7:33 p.m., a second witness—one of Ness’s neighbors—called the

police and described the same vehicle and license plate. The second caller

reported the driver had almost hit the caller’s car and had driven “over top the

curbs.” The witness described the driver as out of control. A few minutes later,

the same witness made a second call to report that the driver was threatening a

neighbor.
                                        3


       Another of Ness’s neighbors called at 7:41 p.m. and reported the driver

was “threatening to blow up houses on the block, [and] kill everybody.” Also, the

driver had “almost hit two guys with his vehicle” and had told a neighbor he would

run over the neighbor’s daughter if she was outside. The witness reported the

man had parked his vehicle in his driveway and had just gone into his home; she

believed he was drunk because he was “staggering around.”

       Officer Shoumaker was dispatched to the Tobacco Hut at 7:30 p.m.

following the initial call. He received a second call from dispatch at 7:42 p.m.,

which directed him to the area of the later complaints and Ness’s home. He

estimated he arrived at Ness’s home within a few minutes of the second

dispatch.   Shoumaker knocked on Ness’s front door, and the door opened

approximately six inches. Ness approached the door and spoke with the officer,

but he refused to step outside. According to the officer’s testimony, he believed

Ness was a safety risk and, as such, felt the need to keep his eyes on him. For

that reason, Shoumaker placed his foot in the doorway to keep the door ajar.

When Ness then attempted to shut or slam the door, it made contact with

Shoumaker’s shoulder and arm, which broke the window in the door. Officer

Shoumaker then entered Ness’ home and arrested him. Other police officers

soon arrived to assist Shoumaker, and Ness was transported to the alcohol

safety and protection office, where he refused to perform field sobriety tests or

submit to a breath test.

       On April 15, 2014, Ness was charged by trial information with operating

while intoxicated, second offense, and assault on a peace officer.
                                          4


       Ness filed a motion to suppress, asserting the police had illegally entered

his home and arrested him without a warrant. The State resisted the motion,

arguing there were two applicable exceptions to the warrant requirement: exigent

circumstances and community caretaking. A hearing was held on the matter on

March 6, 2014. At the hearing, Officer Shoumaker testified he put his foot in the

door jamb of Ness’s front door because “[b]ased on [Ness’s] behavior, I could tell

he was intoxicated and he had threatened the public. For my safety and the

public, I was not getting out of his house.” Additionally, he testified:

       I didn’t want that door to be closed for my safety and the public
       safety. Based on the information I had going into this call where
       he’s threatening to blow people up or blow houses up, run kids
       over, I don’t know what he has in his house. I don’t want to give
       him the opportunity to go back into his house to grab whatever
       explosive device he may have had to blow up houses.

The court determined that both exigent circumstances and community caretaking

exception applied, making a warrant unnecessary. Ness’s motion to suppress

was denied.

       The matter proceeded to jury trial on December 16–17, 2014. At the start

of trial, the State asked the court to declare the employee from the Tobacco Hut

as unavailable to testify so her deposition could be read into evidence. The State

maintained this was necessary because the employee was suffering from mental

health ailments and other medical concerns that required her to take medication

tjat affected her memory and ability to speak. Ness resisted the State’s request.

The court found the employee was unavailable to testify, and the deposition was

read into evidence.
                                        5


      Following the trial, the jury found Ness guilty of driving while intoxicated

and simple assault.    Ness admitted to his prior conviction for driving while

intoxicated. He was sentenced to 365 days in county jail with all but sixty days

suspended for driving while intoxicated, second offense. He was sentenced to

ten days in county jail for the assault conviction, with the sentences running

concurrently.

      Ness appeals.

II. Standard of Review

      Ness maintains the district court should have granted his motion to

suppress based on constitutional reasons; therefore our review is de novo. See

State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). We make an independent

evaluation of the totality of the circumstances as shown by the record. Id. The

record includes evidence introduced at both the suppression hearing and at trial.

State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010). “We give deference to the

district court’s findings of fact due to its ability to assess the credibility of

witnesses,” but we are not bound by these findings. Id.

      We review hearsay claims for correction of errors at law.          State v.

Paredes, 775 N.W.2d 554, 560 (Iowa 2009). “This standard of review extends to

determining whether statements come within an exception to the general

prohibition on hearsay evidence.” Id.

III. Discussion

      A. Motion to Suppress

      Ness maintains the court should have granted his motion to suppress

because the officer entered his home and arrested him without a warrant and
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without an applicable exception to the warrant requirement.          The Fourth

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

Constitution protect individuals from unreasonable searches and seizures.

“[P]hysical entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed.” United States v. U.S. District Court, 407 U.S.

297, 313 (1972). “It is a ‘basic principle of Fourth Amendment law’ that searches

and seizures inside a home without a warrant are presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586 (1980) (citation omitted). The State

“bear[s] a heavy burden when attempting to demonstrate an urgent need that

might justify warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S.

740, 749–50 (1984).

      Here, Officer Shoumaker entered Ness’s home and arrested him without a

warrant.   As it did at the suppression hearing, the State maintains that the

exigent-circumstances exception and the community-caretaking exception apply

to these facts to make a warrant unnecessary.

      A recognized exception exists for exigent circumstances. See State v.

Kern, 831 N.W.2d 149, 174 (Iowa 2013). An exigent circumstance is one that

requires immediate aid or action.     Exigent, Black’s Law Dictionary (10th ed.

2014). This exception applies only “when coupled with existing probable cause.”

Kern, 831 N.W.2d at 174. Here, the State contends the officer had probable

cause to believe Ness had driven his vehicle while intoxicated and exigent

circumstances existed that justify the officer’s warrantless entry and arrest of

Ness—namely, “the danger posed by Ness to his neighbors” and to the officer

and the “destruction or tampering with evidence of intoxication.”
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       “Before agents of the government invade the sanctity of the home, the

burden is on the government to demonstrate exigent circumstances that

overcome the presumption of unreasonableness that attaches to all warrantless

entries into the home.”     Welsh, 466 U.S. at 750.       “When the government’s

interest   is only to    arrest for a minor offense, that           presumption of

unreasonableness is difficult to rebut, and the government usually should be

allowed to make such arrests only with a warrant issued upon probable cause by

a neutral and detached magistrate.”       Id.   Consideration of the gravity of the

offense is an important part of the constitutional analysis. Id. at 753

       Here, the dissipation of alcohol as possible evidence is not enough to

justify the warrantless entry and arrest of Ness. There was no hot pursuit of

Ness as he had reached his home and left his car some time before the officer

arrived at the residence. As our supreme court explained in State v. Lovig:

       [W]e first observe that a defendant is permitted to refuse a chemical
       test. Thus, the claim of destruction of evidence in the context of
       blood alcohol content testing may be illusory. Additionally, unlike
       hot pursuit, the time lapse achieved by a suspect who successfully
       reaches the comforts of home without police in hot pursuit
       necessarily provides a suspect with two of the three means of
       destruction that would still exist even if a warrantless entry was
       made once police arrived. Furthermore, the natural dissipation of
       the blood alcohol level of a person is an aspect of most every OWI
       case, and cannot be properly assessed without some reference to
       the time frame in which a chemical test can be administered. Thus,
       the actual time to obtain a warrant becomes the important factor. If
       the time is relatively short, fear over too much dissipation will be
       alleviated. Furthermore, just as an expert can provide testimony at
       trial to explain the degree blood alcohol levels decline over time,
       the same expert can use any blood alcohol level finally obtained
       after the execution of a warrant to extrapolate back to arrive at a
       blood alcohol level earlier in time.
                                           8


675 N.W.2d 557, 566–67 (Iowa 2004) (internal citations omitted). The court

ultimately concluded that “[a]lthough the crime of OWI is a comparatively serious

matter . . . [e]xigent circumstances do not exist merely because [the defendant’s]

‘blood alcohol level might have dissipated while the police obtained a warrant.’”

Id. at 567 (citation omitted).

       As in Lovig, Ness was in his home for at least some period of time before

the officer arrived,1 and we have no evidence that the officer sought a warrant or

attempted to determine the amount of time it would take to get one. Additionally,

we acknowledge Ness testified at trial that he drank a pint of spiced rum after he

arrived home and before the officer arrived. However, there was no evidence

that when Officer Shoumaker arrived, he believed Ness was engaged in a

“purposeful activity within the [home] that would destroy the integrity of any future

chemical tests” at the time he entered the home. See id. We are not convinced

the destruction or possible tampering with evidence was an exigent circumstance

that allowed warrantless entry into Ness’s home.

       We next consider whether the danger posed by Ness to his neighbors and

the officer created an exigent circumstance for the warrantless entry and arrest.

In State v. Gregory, our supreme court outlined six conditions as guidelines in

determining the existence of exigent circumstances:

       1. A grave offense is involved;
       2. The suspect is reasonably believed to be armed;
       3. There is probable cause to believe the suspect committed the
       crime;
       4. There is strong likelihood of escape if not apprehended;

1
  We do not credit Ness’s testimony that he arrived home from the liquor store at
approximately 6:35 pm and was home for fifty minutes before the officer initially knocked
on his front door.
                                         9


       5. There is strong reason to believe he is on the premises; and
       6. The entry, though not consented to, is peaceable.

331 N.W.2d 140, 141 (Iowa 1983). In considering the criteria, “[n]o one of them

is conclusive, and all need not be present.”       Gregory, 331 N.W.2d at 141.

“Exigent circumstances usually are found to exist where there is a danger of

violence and injury to the officers or others, a risk that the suspect may escape,

or a probability that evidence will be concealed or destroyed if arrest was unduly

delayed.” State v. Hardin, 359 N.W.2d 185, 188 (Iowa 1984).

       We consider the six factors as they apply to these facts and find that an

exigent circumstance existed. We acknowledge that the record does not indicate

there was any reason to believe Ness would have escaped if he was not

immediately apprehended. He was in his own home and his car was parked

where the officer could see and monitor it. Additionally, the officer’s entry cannot

be characterized as peaceable. Ness was angered by Officer Shoumaker using

his body to block the door from shutting and, as a result, shut or slammed the

door on the officer, causing the glass in the door to break.

       However, we are more persuaded by the other factors. First, operating

while intoxicated “is a relatively serious crime within the spectrum of prohibited

acts in Iowa.” Lovig, 675 N.W.2d at 565. Additionally, and most importantly,

Officer Shoumaker reasonably believed Ness may have been armed and that

there was a danger of violence and injury to the officers. No witnesses had

reported seeing Ness with a weapon, but Ness had threatened to both “blow up”

and shoot his neighbors.      Next, Officer Shoumaker had probable cause to

believe Ness had operated his vehicle while intoxicated.        Multiple witnesses
                                          10


called dispatch to report the erratic driving of the vehicle that ultimately parked at

Ness’s home.     The employee from the Tobacco Hut told dispatch they had

refused to sell Ness alcohol because he had hit the building and they believed he

was drunk. One of the neighbors who called stated Ness had almost hit two of

the neighbors with his vehicle, and she believed he was drunk because she saw

him “staggering around” after he exited the vehicle. The officer also had a strong

reason to believe Ness was on the premises. One of Ness’s neighbors reported

to dispatch as Ness entered his home—just a few minutes before the officer

arrived. Additionally, after Officer Shoumaker knocked on Ness’s front door and

it opened, he was able to see Ness within the home.

       Ness urges us to find otherwise, arguing the facts here are similar to the

facts in Welsh v. Wisconsin, 466 U.S. 740, 749–50 (1984), where the Supreme

Court concluded that no exigent circumstance supported the warrantless entry of

police and the subsequent arrest of the defendant.         In Welsh, the defendant

drove erratically before ultimately swerving off the road, abandoning the vehicle,

and walking home. 466 U.S. at 742. Officers were able to learn the driver’s

identity and address from the vehicle registration, and they went to the

defendant’s home. Id. Without a search or arrest warrant, the officers entered

the defendant’s home—finding him lying in bed—and arrested him. Id. at 743.

The   State   argued    the   existence   of   three factors constituted      exigent

circumstances: hot pursuit of a suspect, the need to prevent physical harm to the

defendant and the public, and the need to prevent destruction of evidence. Id. at

748. The Court first noted that the offense for which the officers entered the

home was a “noncriminal, traffic offense.”          Id. at 753.     The court was
                                          11


unpersuaded by the State’s hot pursuit argument “because there was no

immediate or continuous pursuit of the [defendant] from the scene of the crime.”

Id.   Additionally, the court found that “because the [defendant] had already

arrived home, and had abandoned his car at the scene of the accident, there was

little remaining threat to public safety.” Id. Finally, the dissipation of alcohol in

the defendant’s blood alone was not compelling enough to justify the warrantless

entry and arrest of the defendant. Id. at 754. The Court ultimately concluded the

arrest of the defendant was “invalid.” Id.

       Like Welsh, there was no “hot pursuit” of Ness by the officer here, and we

agree the loss of evidence is not a compelling argument. However, the present

facts differ in important ways. First, in Welsh, the offense of driving while under

the influence of an intoxicant was a noncriminal, traffic offense whereas in Iowa,

it is a criminal offense which carries the possible penalty of one-year jail time.

466 U.S. at 753; see also Iowa Code § 321J.2(3)(a) (first offense is punishable

by a period of imprisonment “not to exceed one year”). As our supreme court

has stated, it is a “comparatively serious matter,” and “[i]t is the type of crime that

can support a warrantless entry into a home if probable cause and exigent

circumstances are present.” Lovig, 675 N.W.2d at 565. Additionally, in Welsh

the court noted that the danger to the defendant and the community ended when

the defendant abandoned his vehicle and entered his home. 466 U.S. at 753.

Here, the officer reasonably believed Ness still posed a danger as he had made

several threats of violence to his neighbors just before entering his home, and it

was unclear if he planned to leave again and carry out his plans to harm other

people. The officer made a minimal intrusion on Ness’s house, arresting him just
                                         12


inside the doorway and entering only insofar as to allow Ness, who was unsteady

on his feet, to sit on a nearby couch.

       To be clear, although both the State and the district court relied on Ness’s

slamming or shutting the door on the officer as part of the justification for the

warrantless entry, we do not consider that action as part of the exigent

circumstance we find here. “The Fourth Amendment has drawn a firm line at the

entrance of the house. Absent exigent circumstances, that threshold may not

reasonably be crossed without a warrant.” Payton, 445 U.S. at 590. “When law

enforcement officers who are not armed with a warrant knock on a door, they do

no more than any private citizen might do.” Kentucky v. King, 563 U.S. 452, 469

(2011).   “[W]hether the person who knocks on the door and requests the

opportunity to speak is a police officer or a private citizen, the occupant has no

obligation to open the door or to speak.”      Id. at 469–70 (emphasis added).

“[E]ven if an occupant chooses to open the door and speak with the officers, the

occupant need not allow the officers to enter the premises and may refuse to

answer any questions at any time.” Id. at 470. While the exigencies of the

situation can make the need for law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment, a

police-created exigency will negate the reasonableness of the warrantless entry.

See id. at 460–61.        Here, we do not consider Ness’s action of shutting or

slamming his front door on the officer’s foot as part of the exigent circumstance

that justified the officer’s entry.      It does demonstrate, however, Ness’s

belligerence and his combative attitude, which corroborated the officer’s concern

about violent behavior.
                                         13


       In considering the factors listed above, the threat of harm or violence to

the neighbors created an exigent circumstance which, in addition to the probable

cause to believe Ness had operated his vehicle while intoxicated, provided a

valid reason for the warrantless entry and arrest of Ness. As such, the district

court properly denied Ness’s motion to suppress.2

       B. Deposition

       Ness maintains the district court erred in allowing the deposition of the

Tobacco Hut employee to be read into evidence because the State failed to

provide the necessary proof she was unavailable to testify. In response, the

State contends, and our review of the record confirms, that Ness did not raise a

constitutional challenge regarding his right to confront the witnesses against him

at the district court level. Thus, insofar as Ness attempts to raise a constitutional

challenge, it is not preserved for our review. See Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.”).

       As an exception to the hearsay rule, Iowa Rule of Evidence 5.804(b)(1)

provides for the admission of a deposition of an unavailable witness if the party

against whom the testimony is offered had an opportunity and similar motives to

develop the testimony by direct, cross, or redirect examination. Rule 5.804(a)(4)

defines a witness as unavailable when the witness “[i]s unable to be present or

testify at the trial or hearing because of death or then existing physical or mental


2
  We decline to consider the State’s arguments regarding other possible applicable
exceptions to the warrant requirement.
                                        14


illness or infirmity.” The State had the burden, as the proponent of the hearsay

evidence, to prove it fell within an exception to the hearsay rule. State v. Cagley,

638 N.W.2d 678, 681 (Iowa 2001).        We review the district court’s decisions

regarding hearsay claims for correction of errors at law. Paredes, 775 N.W.2d at

560. “This standard of review extends to determining whether statements come

within an exception to the general prohibition on hearsay evidence.” Id.

      Here, the incident in question occurred in April 2014. The witness gave a

discovery   deposition   to   defense    counsel    regarding   her   observations

approximately two months later, in June 2014. A review of the deposition shows

that it was conducted by Ness’s attorney,3 and the attorney was allowed to

conduct the deposition without objections or interruptions from the State.

Additionally, the deposition took place at the request of the defendant—

presumably to prepare for trial. On December 12, 2014, the witness contacted

the State and indicated she had “mental health issues, health ailments, and other

medical concerns that . . . require her to take numerous medications that affect

her memory, ability to speak, and ability to function.” The State filed a notice of

unavailability regarding the witness on December 15, 2014.

      Immediately before trial commenced the next day, the prosecutor made a

professional statement, reiterating why the witness was unavailable to testify.

Additionally, the prosecutor indicated the witness had “moved in with her mother

because she requires a caretaker to function” and she could not “formulate

complete sentences without having a lot of trouble.” The State also provided


3
  The attorney who conducted the deposition was not the same attorney that
represented Ness at trial.
                                          15


medical records from the witness spanning from September to November 2014,

which indicated the witness was on several medications for pain and anxiety.

Neither at trial, nor here, does Ness contest the truthfulness of State’s assertions

regarding the witness’s physical and mental health. Rather, he maintains these

representations by the State are not sufficient to support the district court’s

finding the witness was unavailable.

      Assuming without deciding the professional statement by the prosecutor

and the medical records of the witness did not justify the court’s determination

that the witness was unavailable to testify, we find that any alleged error in

admitting the deposition of the witness was harmless. Most, if not all, of the

evidence from the admitted deposition was cumulative of the dispatch call that

was admitted and played for the jury without objection. See State v. Elliot, 806

N.W.2d 660, 669 (Iowa 2011) (“Admission of hearsay evidence over a proper

objection is presumed to be prejudicial unless the contrary is affirmatively

established. The contrary is affirmatively established if the record shows the

hearsay evidence did not affect the jury’s finding of guilt. One way to show the

tainted evidence did not have an impact on the jury’s verdict is to show the

tainted   evidence   was   merely      cumulative.”   (internal   citations   omitted)).

Additionally, the evidence of Ness driving a vehicle while being intoxicated was

also provided by the admission of the three other calls to dispatch as well as the

testimony of a different employee from the Tobacco Hut and two of Ness’s

neighbors. The court did not err in allowing the witness’s deposition to be read

into evidence.
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IV. Conclusion

      Because the officer had probable cause to believe Ness had operated his

vehicle while intoxicated, and an exigent circumstance of possible danger to the

officer and neighbors existed, the officer was justified in entering Ness’s home

without a warrant and arresting him. As such, the district court properly denied

Ness’s motion to suppress.     Additionally, even if the district court erred in

deeming the witness unavailable, the deposition was merely cumulative of other

evidence properly admitted, and its admission was harmless. We affirm.

      AFFIRMED.
