                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0052
                              Filed February 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RUSSELL GENTRY JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Marshall County, James C. Ellefson,

Judge.



       Defendant appeals his convictions for possession of a controlled substance

with intent to deliver, failure to affix a drug tax stamp, and driving while barred.

AFFIRMED.




       C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.

       Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



       Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                          2


BOWER, Judge.

       Russell Gentry Jr. appeals his convictions for possession of a controlled

substance with intent to deliver, failure to affix a drug tax stamp, and driving while

barred. We conclude an officer’s observations, both by visual estimation and

pacing, support a rational inference Gentry was exceeding the speed limit,

providing the officer probable cause to stop the vehicle. We affirm the district

court’s decision denying Gentry’s motion to suppress.

       I.     Background Facts & Proceedings

       On June 2, 2017, at about 2:00 a.m., Officer Jacob Fogt of the Marshalltown

Police Department was on patrol when he noticed a red Toyota Camry in a

moderate-to-high crime area. He decided to follow the vehicle, which was the only

one on the road at the time. The car made several turns. Officer Fogt stated, “[I]t

seemed like they were just attempting to get away from me with all of the

unnecessary turns.”

       On North Fourth Avenue, Officer Fogt estimated the Camry was traveling

at thirty miles per hour in a twenty-five miles per hour zone. He attempted to

determine the speed of the vehicle by keeping a consistent distance behind it, and

saw his speedometer and GPS system both showed he was going thirty-three

miles per hour.     He checked the speed of the Camry in this manner for

approximately three to five seconds.

       Officer Fogt stopped the Camry for speeding. The driver of the vehicle was

Gentry.1 Officer Fogt determined Gentry was barred from driving as a habitual


1
   Gentry initially told Officer Fogt his name was David Smith and gave a false Social
Security number.
                                            3


offender. When Gentry got out of the vehicle at Officer Fogt’s request, Gentry ran

away.      He was swiftly apprehended by officers.        Gentry had a small baggie

containing a white powdery substance in his right front pocket. Also, officers found

a larger bag containing a white powdery substance on the ground where Gentry

was apprehended. The substance in the bags was later determined to be 36.55

grams of cocaine. Additionally, Gentry had $680 in cash and two cell phones.

        Gentry was charged with possession of a controlled substance with intent

to deliver, in violation of Iowa Code section 124.401(1)(c)(2)(b) (2017), a class “C”

felony; failure to affix a drug tax stamp, in violation of section 453B.12, a class “D”

felony; and driving while barred, in violation of section 321.561, an aggravated

misdemeanor.

        Gentry filed a motion to suppress, claiming the stop of his vehicle was

unconstitutional. At the suppression hearing, Officer Fogt testified he had training

on making visual observations of vehicle speeds but no official training on pacing

vehicles to determine speed. The district court denied the motion to suppress,

finding:

        Officer Fogt testified to the speed limit, 25 miles per hour; he testified
        to his own visual estimate of the speed, 30 miles per hour; and he
        testified to the estimate he made as he followed the Camry, 33 miles
        per hour. The court is not willing to characterize what Officer Fogt
        did as “pacing” the Camry, but he was in a position to estimate the
        Camry’s speed in relation to his own.
                Officer Fogt’s observations while following the Camry on
        North Fourth Avenue may not have been sufficient to prove speeding
        at 33 miles per hour in a 25 miles-per hour zone, but they were
        sufficient to give him probable cause to believe the Camry was
        exceeding the 25 miles per hour speed limit. Even a speed of 26
        miles per hour would constitute speeding.
                                         4


The court concluded, “Officer Fogt’s estimate of the defendant’s speed of being in

excess of the posted speed was entirely reasonable and provided him with

probable cause to support the traffic stop for speeding.”

      Gentry waived his right to a jury trial and the case was tried to the court

based on the minutes of evidence. The district court found Gentry guilty of the

charges against him. He was sentenced to a term of imprisonment not to exceed

ten years on the charge of possession with intent to deliver, five years on the

charge of failure to affix a drug tax stamp, and two years on the charge of driving

while barred, all to be served concurrently.     Gentry appeals his convictions,

claiming the court should have granted his motion to suppress.

      II.    Standard of Review

      When a challenge to a ruling on a motion to suppress raises constitutional

grounds, our review is de novo. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

We conduct “an independent evaluation of the totality of the circumstances as

shown by the entire record.” Id. We give deference to the court’s factual findings

based on the court’s opportunity to observe the witnesses but are not bound by

such findings. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).

      III.   Motion to Suppress

      Gentry claims the district court should have granted his motion to dismiss

because Officer Fogt lacked reasonable suspicion or probable cause for the traffic

stop. He states a reasonable person would not have believed he was speeding.

Gentry claims Officer’s Fogt’s visual estimation and pacing is not sufficiently

reliable to show he was exceeding the speed limit. He points out Officer Fogt had

not received any training in pacing vehicles.
                                         5


         The Fourth Amendment protects against unreasonable searches and

seizures. State v. Lloyd, 701 N.W.2d 678, 680 (Iowa 2005). “If evidence is

obtained in violation of the Fourth Amendment, it is inadmissible regardless of its

relevancy or probative value.” Id. Generally, a search warrant is required prior to

a search or seizure unless the circumstances come within an exception to the

warrant requirement. State v. Louwrens, 792 N.W.2d 649, 651 (Iowa 2010).

         “The State has the burden to prove by a preponderance of the evidence

that the officer had probable cause to stop the vehicle.” State v. Tague, 676

N.W.2d 197, 201 (Iowa 2004). “When a peace officer observes a violation of our

traffic laws, however minor, the officer has probable cause to stop a motorist.” Id.

The observation of any type of traffic offense by an officer “establishes both

probable cause to stop the vehicle and reasonable suspicion to investigate.” State

v. McIver, 858 N.W.2d 699, 702 (Iowa 2015).

         An officer has probable cause to stop a vehicle which is exceeding the

speed limit. See State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). One method

for determining the speed of a vehicle is pacing. See State v. Hicks, 791 N.W.2d

89, 93 (Iowa 2010) (“Sparks’s pacing and the GPS speed allows for a rational

inference that Hicks was traveling in excess of the twenty-five miles-per-hour

speed limit.”); State v. Bedwell, 417 N.W.2d 66, 70 (Iowa 1987) (finding officer’s

testimony he “was just keeping pace” with defendant was sufficient to show

defendant was exceeding sixty-five miles per hour in a thirty-five miles per hour

zone).

         Additionally, an officer may determine a vehicle’s speed by a visual

estimate. See State v. Barker, No. 16-0686, 2017 WL 1735680, at *3 (Iowa Ct.
                                           6


App. May 3, 2017) (“An officer’s visual observations, whether as to speed or some

other activity that would support a finding of probable cause or reasonable

suspicion,   may    be   sufficient   to   meet   the   preponderance-of-evidence

requirement.”); State v. Jerde, No. 00-0605, 2001 WL 854856, at *2 (Iowa Ct. App.

July 31, 2001) (finding there was sufficient evidence of speeding based on officer’s

visual estimate as well as the officer’s speed when following the defendant). In

considering an officer’s visual estimation of speed, a court may “make a case-

specific inquiry into the officer’s training and experience, the nature and extent of

the opportunity which the officer had to view the moving vehicle, and the magnitude

of the variance between the estimated speed and the speed limit.” State v.

Konvalinka, No. 11-0777, 2012 WL 1860352, at *6 (Iowa Ct. App. May 23, 2012).

       Officer Fogt testified he visually estimated Gentry’s vehicle was traveling at

thirty miles per hour. He stated he had been trained to make visual observations

of vehicle speeds and he had passed the proficiency testing earlier that year.

Officer Fogt testified his visual estimations were “pretty accurate.” In addition to

his visual estimation of Gentry’s speed, Officer Fogt paced the Camry, making sure

his speed and the distance between the vehicles remained the same. By this

method, his speedometer and GPS system showed he was traveling at thirty-three

miles per hour. The speedometer and GPS were separate, independent systems.

       We conclude Officer Fogt’s observations, both by visual estimation and

pacing, support a rational inference Gentry was exceeding the speed limit and this

gave the officer probable cause to stop the vehicle. We affirm the district court’s

decision denying Gentry’s motion to suppress.

       AFFIRMED.
