                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0686
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN BARKER III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris, District Associate Judge.



      A defendant appeals the district court denial of his motion to suppress.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Vogel, J., and Blane, S.J.*

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

        Defendant John Barker III appeals the district court’s denial of his motion

to suppress and subsequent conviction for operating while intoxicated (OWI),

second offense. Upon our review, we find the district court properly denied the

motion and therefore affirm his conviction.

   I.      Factual and procedural background.

        At 2:34 a.m. on October 4, 2015, Officer Chris Roberts was patrolling a

residential neighborhood in Waterloo.         As he drove north on Ninth Street,

Roberts met a southbound car traveling at a high rate of speed, which he

estimated to be fifty to sixty miles per hour. The speed limit was thirty miles per

hour.   He testified that based on his training and experience, it was “pretty

obvious” the vehicle was “traveling a lot faster” than the speed limit.

        Officer Roberts has been a peace officer since graduating from the Iowa

Law Enforcement Academy in 2007. He received training on speed detection

using radar and LiDAR (light and radar). That training included learning how to

estimate speed “just with the naked eye,” and Roberts had to pass a test by

accurately estimating the speed of moving vehicles.

        By the time Roberts had turned around, the speeding car had turned onto

a side street. When he caught up, the car was stopped in the middle of the street

such that it would have blocked oncoming traffic. The car stayed there for fifteen

to thirty seconds, two men got out, and the car “took off.” Roberts stopped to

speak with the two passengers, and he broadcast his location over his patrol

car’s radio to other officers, requesting assistance in stopping a blue, four-door

Chrysler 200 with New Jersey license plates.
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      Officer Nathan Watson was in the area and heard over the police radio the

suspect car’s description. He observed the vehicle and initiated a traffic stop

when the car stopped for a stop sign.           Upon approaching the car, Watson

determined defendant John Barker III was driving and observed Barker smelled

of alcohol and had bloodshot, watery eyes. Officer Nicholas Weber arrived to

assist with the traffic stop. He too noticed Barker smelled of alcohol and had

bloodshot, watery eyes. Barker scored six of six clues on the horizontal gaze

nystagmus test, but he did not perform the walk-and-turn or one-leg-stand tests

due to physical limitations. He provided a breath sample for a preliminary breath

test, which indicated an alcohol concentration over the legal limit. At the police

station, a DataMaster breath test indicated Barker’s blood alcohol concentration

(BAC) was .104.

      On November 2, 2015, Barker was charged by trial information with OWI,

second offense, in violation of Iowa Code section 321J.2 (2015). The charge

was enhanced based on Barker’s prior OWI conviction entered on July 31, 2012,

in Black Hawk County.       On December 16, 2015, Barker filed a motion to

suppress, claiming the officer’s stop violated his rights under the United States

and Iowa Constitutions. Following a January 20, 2016 suppression hearing, the

district court denied the motion to suppress.

      On February 26, 2016, Barker waived his right to a jury trial, and the case

proceeded to a bench trial based upon the minutes of evidence. The court found

Barker guilty of OWI, second offense. Barker filed timely notice of appeal on

April 20, 2016.
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   II.       Standard of review.

          “We review the district court’s denial of a motion to suppress based on the

deprivation of a constitutional right de novo.” In re Pardee, 872 N.W.2d 384, 390

(Iowa 2015). “A de novo review constitutes an independent evaluation of the

totality of the circumstances as shown by the entire record.” State v. Tyler, 830

N.W.2d 288, 291 (Iowa 2013) (citation and internal quotation marks omitted).

Deference is given to the district court’s factual findings based on the court’s

opportunity to observe the witnesses, but such findings are not binding. See id.

   III.      Discussion.

          As he did in his motion to suppress, Barker maintains on appeal that the

officers’ stop of his vehicle was unconstitutional in violation of the “Fourth

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

Iowa Constitution.” Specifically, he argues that an officer’s visual observation

and estimate that he was exceeding the speed limit is not sufficient probable

cause to stop his vehicle.

          “Our federal and state constitutions protect people from unreasonable

searches and seizures.” State v. Hoskins, 711 N.W.2d 720, 725 (Iowa 2006)

(citing U.S. Const. amend IV; Iowa Const. art I, § 8; State v. Cline, 617 N.W.2d

277, 281 (Iowa 2000)).          “Warrantless searches and seizures are per se

unreasonable, unless one of the few carefully drawn exceptions to the warrant

requirement exists.” Id. at 726. Thus, for the court to find the stop was lawful,

the State must prove by a preponderance of the evidence that a recognized

exception to the warrant requirement applies. Id.
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       A traffic stop is permissible under our Iowa and United States

Constitutions when supported by probable cause or reasonable suspicion of a

crime. Delaware v. Prouse, 440 U.S. 648, 654–55 (1979); State v. Pals, 805

N.W.2d 767, 774 (Iowa 2011); State v. Tague, 676 N.W.2d 197, 201, 204 (Iowa

2004). Stopping a vehicle and detaining the occupants is not an unreasonable

seizure when the officer has either (1) probable cause to stop the vehicle due to

observation of a traffic violation or (2) reasonable suspicion of criminal activity,

supported by articulable facts that a criminal act has occurred or is occurring.

Tague, 676 N.W.2d at 201–04. When a peace officer observes any type of traffic

offense, the violation establishes both probable cause to stop the vehicle and

reasonable suspicion to investigate. State v. McIver, 858 N.W.2d 699, 702 (Iowa

2015) (citing State v. Harrison, 846 N.W.2d 362, 365 (Iowa 2014)).

       Here, the officer observed two traffic violations—speeding and stopping in

the center of the roadway. Under McIver, either one of these would provide the

officer with probable cause to stop and reasonable suspicion to investigate.

Barker argues that his case is so similar to one of our unreported cases that it

should control and support suppression of the stop. In State v. Petzoldt, No. 10-

0861, 2011 WL 2556961, at *3-4 (Iowa Ct. App. June 29, 2011), a panel of this

court found:

              Here, Officer King testified he was playing Solitaire when
       observed Petzoldt’s pickup truck briefly as it passed in front of his
       patrol car. Although he testified he believed the truck was travelling
       at a speed greater than the posted speed limit, Officer King made
       no estimate as to how fast the truck was travelling or how much
       over the posted limit he thought the pickup was travelling. The
       posted speed limit is not even in the record before us. [] Officer
       King’s visual estimate of speed was not confirmed by any other
       means of corroboration of the speed, such as radar or pacing. []
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        Officer King observed no other traffic infractions or driving
        anomalies by the pickup. He reached his conclusion based upon
        “years of experience looking at vehicles and the speeds they are
        going,” something he did every day in his job as a thirty-one-year
        veteran of the police force. Further, he said that as he attempted to
        catch up to the pickup, he “could tell that it was still going over the
        speed limit.” Officer King did not charge Petzoldt with speeding.
        The speed of Petzoldt’s truck cannot be discerned from viewing the
        video taken by Officer King’s dashboard-mounted camera.
                Officer King’s testimony is solely conclusory. Having failed to
        articulate his observations of the movement of the Petzoldt truck in
        his testimony, Officer King’s opinion lacks any factual foundation.
        Other than relying on his experience as a police officer, he failed to
        express any reasons for his belief the truck was speeding.

        In the present case, Officer Roberts testified not only to his background

and training in making estimates of speed, but he formed the opinion that

Barker’s car was travelling an estimated fifty miles per hour, which was twenty

miles per hour over the posted thirty miles-per-hour limit. Roberts’s observation,

distinct from the finding in Petzoldt, was made of Barker’s vehicle for a lengthy

period of time as it approached and then passed Roberts. Roberts also gave a

specific estimate of speed that was readily discernable as exceeding the posted

limit in a residential neighborhood. Additionally, Roberts, unlike Officer King,

observed a separate violation—Barker stopping his vehicle in the middle of the

street to discharge his passengers. See Iowa Code § 321.358(11) (“No person

shall stop . . . a vehicle, except when necessary to avoid conflict with other traffic

or in compliance with the directions of a police officer or traffic-control device . . .

[o]n the roadway side of any vehicle stopped or parked at the edge or curb of a

street.”).

        Barker would have us adopt a standard that an officer’s mere observation

and estimation that his vehicle exceeded the speed limit, without some other
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objective verification such as radar or following behind and pacing the speed,

cannot rise to the level of probable cause for a stop. Petzoldt does not mandate

such a standard. The State has the burden “to prove by a preponderance of the

evidence that the officer had probable cause to stop the vehicle. If the State

does not meet this burden, the evidence obtained through the stop must be

suppressed.” State v. Louwrens, 792 N.W.2d 649, 651–52 (Iowa 2010) (internal

citations omitted). 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.

See State v. Konvalinka, No. 11-0777, 2012 WL 1860352, at *6 (Iowa Ct. App.

May 23, 2013) (stating cases such as this require “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”). In Petzoldt, this court found

the officer’s opinion that the vehicle exceeded the speed limit was not proved by

the preponderance standard. We find the facts in this case substantially different

from those in Petzoldt; they meet the preponderance standard. See, e.g., State

v. Johnson, No. 14-0833, 2015 WL 1817108, at *3 (Iowa Ct. App. Apr. 22, 2015)

(affirming denial of motion to suppress where officer had initiated stop due to

defendant exceeding posted speed limit, where officer had determined defendant

was speeding “based upon his specific training and experience in visually

determining the speed of vehicles”);    State v. Jerde, No. 00-0605, 2001 WL

854856, at *2 (Iowa Ct. App. July 31, 2001) (finding officer’s testimony about

speed of defendant’s vehicle was sufficient evidence to support defendant’s
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conviction, where officer’s estimate of speed was based on his experience and

speed of officer’s vehicle in comparison).

      We find the district court properly found the officers had probable cause to

stop Barker’s vehicle and correctly denied his motion to suppress.

      AFFIRMED.
