                   IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0483
                                  Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KARI LEE FOGG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Paul G. Crawford

(motion to suppress) and Stephen A. Owen (trial), District Associate Judges.



      Kari Fogg appeals her conviction of operating while intoxicated.

AFFIRMED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Melinda J.

Nye, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       Kari Fogg appeals her conviction of operating while intoxicated (OWI), first

offense. She contends the district court erred in denying her motion to suppress

evidence on the basis of an allegedly unreasonable seizure. She also argues her

counsel rendered ineffective assistance in failing to object to alleged prosecutorial

error in the State’s closing argument.

I.     Background Facts and Proceedings

       Shortly before 10:00 p.m. on Tuesday, October 10, 2017, Officer Michael

Frazier of the Boone Police Department was on routine patrol when he observed

a silver Hyundai “driving really slow” at “ten miles per hour” through a residential

area. Frazier circled the block and observed the vehicle’s movement for another

three or four minutes. The vehicle then turned north into a narrow alley located

between the main streets. According to Frazier’s testimony, the alley is not used

often. The alley is abutted by houses, outbuildings, and driveways.              Frazier

paralleled the vehicle on one of the side streets and then waited for the vehicle to

exit the alley at the end of the block. After waiting at the end of the block for roughly

one minute, Frazier noticed the car had stopped in the middle of the alley and

parked. When asked during the suppression hearing whether he was suspicious

a crime was being committed, Frazier testified:

              I wasn’t sure. A lot of burglaries happen on that side of town,
       so I wasn’t sure if someone was getting dropped off to do vehicle
       burglaries or garage burglaries in the area. It was just all around
       suspicious. Just wanted to make sure they were okay.
              ....
              I really don’t know. I mean it was just odd that someone would
       be parked right there at that time of night.
                                          3


On cross-examination, Frazier conceded he was not under any belief that a crime

had been committed. He elaborated:

       I thought it was a possibility something was going on or it was
       somebody that was broken down in the alley. I didn’t know.
             ....
             I was suspicious of her driving behavior before and then
       where she was parked at at the time or where she had stopped at.

At trial, Frazier testified there was an increased rate of burglaries in the area over

the summer months and Fogg’s behavior on the night in question caused him

concern “that someone was maybe cruising the alleys casing some garages.”

       Frazier turned east on the street north of the alley then “turned south into

the alley and pulled in front of the vehicle to get out to see what was going on.”

Frazier observed the vehicle was still running, its headlights were illuminated, and

it was occupied by a woman, later identified as Fogg. Frazier, without activating

his emergency lights or siren or drawing his sidearm, parked his cruiser twenty to

thirty feet in front of the Hyundai and approached. Because of the way the vehicles

were situated, Fogg’s only avenues for leaving would have been to back out of the

alley or drive around Frazier’s cruiser, the latter of which would have required Fogg

to drive through yards along the alley. Fogg opened her car door, and Frazier

questioned Fogg “whether everything was okay” and “what was going on,” upon

which Fogg advised “she lived in the area and she was checking to see if the alley

was crooked or something to that effect, that she had to report to the city.” Frazier

detected a strong odor of alcohol emanating from Fogg’s vehicle. Fogg was

ultimately arrested and charged with OWI.

       Fogg filed a pretrial motion to suppress arguing she was seized absent

reasonable suspicion or probable cause in violation of her constitutional rights
                                          4


under the state and federal constitutions. Following a hearing, the district court

denied the motion, concluding Fogg was not seized in the constitutional sense or,

alternatively, the seizure was supported by reasonable suspicion. A jury ultimately

found Fogg guilty as charged. Fogg appealed following the imposition of sentence.

II.    Analysis

       A.     Motion to Suppress

       Fogg challenges the district court’s denial of her motion to suppress,

contending the court erred in concluding her encounter with Frazier did not amount

to a seizure or, alternatively, if the encounter did amount to a seizure, it was

supported by reasonable suspicion. “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. Smith, 919

N.W.2d 1, 4 (Iowa 2018) (quoting State v. Coffman, 914 N.W.2d 240, 244 (Iowa

2018)). “[W]e independently evaluate the totality of the circumstances as shown

by the entire record.” Id. (alteration in original) (quoting State v. White, 887 N.W.2d

172, 175 (Iowa 2016)). In evaluating the totality of the circumstances, we are

entitled to consideration of evidence introduced at both the suppression hearing

and trial. See State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). “Each case must

be evaluated in light of its unique circumstances.” Coffman, 914 N.W.2d at 244

(quoting State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012)). We give deference to

the district court’s findings of fact, but we are not bound by them. State v. Storm,

898 N.W.2d 140, 144 (Iowa 2017).

       “The Fourth Amendment of the United States Constitution,” as applied to

the states by the Fourteenth Amendment, “and article I, section 8 of the Iowa
                                         5


Constitution protect individuals against unreasonable searches and seizures.”

State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001); accord State v. McNeal, 867

N.W.2d 91, 99 (Iowa 2015). Evidence obtained following a violation of these

constitutional protections is generally inadmissible at trial. See Wong Sun v.

United States, 371 U.S. 471, 484–85 (1963); Mapp v. Ohio, 367 U.S. 643, 654–55

(1961); Naujoks, 637 N.W.2d at 111.

       Fogg argues that Frazier’s placement of his police cruiser in the alley

rendered the encounter a seizure. It is true that stopping an automobile and

detaining its occupants unquestionably amounts to a seizure within the meaning

of the state and federal constitutions. See Delaware v. Prouse, 440 U.S. 648, 653

(1979); State v. Coleman, 890 N.W.2d 284, 288 (Iowa 2017); State v. Tyler, 830

N.W.2d 288, 292 (Iowa 2013). Fogg concedes this case does not involve a

“textbook traffic stop” but argues “the circumstances of the encounter still

demonstrate that [she] was seized for constitutional purposes.”

       “[N]ot all personal intercourse between the police and citizens involve

seizures.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008); accord State v.

Lowe, 812 N.W.2d 554, 570 (Iowa 2012). “Only when the officer, by means of

physical force or show of authority, has in some way restrained the liberty of a

citizen may we conclude that a ‘seizure’ has occurred.” Wilkes, 756 N.W.2d at 842

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). In order “to convert an

encounter between police and citizens into a seizure,” there must be “objective

indices of police coercion,” which “is not established by ordinary indicia of police

authority,” such as merely flashing a badge, wearing a uniform, or being visibly

armed. See id. at 843. Whether a seizure occurred depends on the totality of the
                                          6


circumstances, and factors that might suggest a seizure 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.” Id. at

842–843 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “The

use of sirens, flashing lights or other signals . . . might also constitute a show of

authority that is a seizure.” State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981).

None of the foregoing factors are present here; the only allegation of police

coercion in this case is the placement of Frazier’s patrol car in front of Fogg’s

vehicle. We agree that the location of the cruiser in relation to the subject vehicle

is “a factor in determining whether a seizure occurred.” Wilkes, 756 N.W.2d at

844. However, our supreme court has cited with approval the conclusion of

another state high court “that if the police car wholly blocks the defendant’s ability

to leave, then an encounter cannot be considered consensual, but where egress

was only slightly restricted, with approximately ten to twenty feet between the two

vehicles, the positioning of the vehicles does not create a detention.” Id. (emphasis

added) (citing People v. Cascio, 932 P.2d 1381, 1386–87 (Colo. 1997)). Here, the

evidence is undisputed that Fogg’s ability to leave was not “wholly” blocked; she

could have backed out of the alleyway, and the evidence shows she was parked

next to a driveway abutting the alley, which she could have turned around in;

additionally, as conceded in her brief on appeal, she could have also driven

forward, although that avenue would have required her to drive through yards

along the alley.    Cf. id. (“Here, the ability of Wilkes to drive away was not

substantially impaired. In fact, . . . there were at least two ways for him to turn his
                                             7

truck around and leave the quarry, had he chosen to do so.”); State v. Mathis, No.

14-0861, 2015 WL1817111, at *2–3 (Iowa Ct. App. Apr. 22, 2015) (finding driver’s

ability to drive away was not “substantially impaired,” as “[s]he had two means of

egress. She could have backed out down the alley or she could have driven

forward past the officers’ vehicles.”). Likewise, this is not a situation in which Fogg

was in transit and Frazier’s placement of his vehicle in her avenue of egress forced

her to grind to a halt in the face of police authority; she was already stopped and

parked in the alley. See, e.g., Harlan, 301 N.W.2d at 720 (noting “[s]topping a car

in transit is obviously a seizure,” but indicating approaching a stationary vehicle is

less akin to a seizure); Mathis, 2015 WL1817111, at *3 (“[W]hen an officer does

not stop a vehicle, but merely walks up to a vehicle that is already stopped, as any

citizen might do, there has generally not been a seizure.”); State v. Bakula, No. 08-

0629, 2008 WL 500196, at *2 (Iowa Ct. App. Nov. 26, 2008) (finding fact that

subject vehicle was already stopped when officer initiated encounter militated

against the existence of a seizure). The circumstances in this case are nearly

identical to those in another matter in which this court affirmed a denial of a motion

to suppress, concluding no seizure occurred.               See generally Mathis, 2015

WL1817111, at *1–3.1


1
  In Mathis, two officers in separate vehicles saw the defendant drive her vehicle into an
alley. 2015 WL1817111, at *1. Without activating their lights or sirens, both officers drove
into the alley where the defendant’s vehicle was parked with the motor running. Id. One
officer parked parallel to the subject vehicle, but facing in the opposite direction, and the
other officer parked about thirty feet behind the first officer, which would have placed him
in the defendant’s forward avenue of egress. See id. The evidence showed “Mathis could
have easily backed out down the alley. She could also have driven forward down the
alley, although this would have required her to drive on the grass to get around” one of
the officer’s vehicles. Id. Ultimately, Mathis was charged with driving while barred, and
she filed a motion to suppress, claiming she was improperly seized. On appeal, we
affirmed the denial of the motion to suppress, concluding:
                                            8


       Here, Frazier was the sole officer involved in the initial encounter; he did not

draw his sidearm; there was no physical touching between him and Fogg; his tone

with Fogg was casual and non-aggressive; and he did not use sirens, flashing

lights, or other signals of authority. Although Frazier’s vehicle was situated in front

of Fogg’s, her ability to drive away was not substantially impaired. Simply stated,

there were no objective indices of police coercion during this encounter; there was

no show of authority here, which is a necessary prerequisite for a seizure. See

California v. Hodari D., 499 U.S. 621, 626–28 (1991). Consequently, upon our de

novo review of the record and consideration of the totality of the circumstances,

we agree with the district court that Fogg was not subjected to a seizure in the

constitutional sense. We therefore affirm the district court’s denial of her motion

to suppress evidence.

       B.      Ineffective Assistance of Counsel

       Next, Fogg argues her “trial attorney was ineffective for failing to object to

the State’s prosecutorial error when the State disparaged defense counsel during

closing argument.”     Ineffective-assistance-of-counsel claims are immune from

error-preservation defects. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010). We review such claims de novo. State v. Albright, ___ N.W.2d ___, ___,



         The officers did not stop Mathis’s vehicle. They did not have their lights
         and sirens on. The evidence showed Mathis’s ability to drive away from
         the officers was not substantially impaired. She had two means of egress.
         She could have backed out down the alley or she could have driven forward
         past the officers’ vehicles. There was no evidence the officers engaged in
         a display of force or used language that would have made Mathis believe
         she was compelled to comply with the request for her driver’s license. The
         record in this case does not show there were objective indices of police
         coercion.
Id. at *3.
                                           9


2019 WL 1302384, at *4 (Iowa 2019). Fogg must establish by a preponderance

of the evidence that (1) her trial counsel failed to perform an essential duty and (2)

the failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider

either the prejudice prong or breach of duty first, and failure to find either one will

preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State

v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

       Specifically, Fogg complains of the prosecutor’s statements during closing

rebuttal argument that “her attorney was intentionally misrepresenting the

evidence and making disingenuous arguments because that was his role in

defending a client” and urging “the jury to consider the prosecutor more trustworthy

and honest because he did not have a client to defend.” Generally, Fogg believes

the prosecutor improperly accused defense counsel of unethical conduct by trying

to twist the evidence in his client’s favor.

       However, upon our de novo review of the record, we find no reasonable

probability of a different outcome had counsel objected to the complained-of

statements. See Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5 (“For the

second prong—prejudice—the claimant must prove there is a reasonable

probability that the outcome of the proceeding would have been different but for

counsel’s unprofessional errors.”). The jury was specifically instructed it must base

its verdict only upon the evidence presented and the court’s instructions. The jury

was also instructed statements, arguments, and comments by the lawyers are not

evidence. Appellate courts presume juries follow the court’s instructions, State v.

Sanford, 814 N.W.2d 611, 620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552
                                         10


(Iowa 2010), and we are thus unconvinced that the complained-of statements had

any effect on the jury’s verdict.

       Furthermore, we disagree with Fogg that “[t]he case was close.” Although

Fogg variously testified that she was not impaired on the night in question and

attempted to explain away the State’s evidence during her testimony, the State

provided a mountain of evidence to rebuff her assertions. Fogg admitted to alcohol

consumption, although initially denying the same, and the standard field sobriety

tests she completed indicated she was impaired.2 She also admitted to consuming

several medications on the night in question, some of which cause dizziness and

may impair one’s ability to operate a motor vehicle. Video footage from Frazier’s

body camera showed Fogg to exhibit slurred speech and an inability to follow

instructions during attempted field sobriety testing. Video footage of Fogg at the

jail likewise showed Fogg, throughout the attempted exercise of her rights under

Iowa Code section 804.20 (2017) and implied-consent-advisory procedures, to

exhibit slurred speech; be in somewhat of a confused and emotional state; and

have bloodshot, watery eyes. Frazier testified he continued to smell the odor of

alcohol coming from Fogg’s person throughout his more than two-hour encounter

with her. She denied being impaired to Frazier, but refused to submit to both a

preliminary breath test and chemical testing. The jury was instructed it could

consider Fogg’s refusal to submit to a breath test in reaching its verdict. Frazier

testified he had “[n]o doubt” that Fogg was operating a motor vehicle while




2
  Fogg was subjected to the horizontal- and vertical-nystagmus tests. She declined to
perform the walk-and-turn and one-legged-stand tests because she knew she would fail
those tests.
                                        11


intoxicated. Given the strong evidence of guilt, we find no reasonable probability

of a different outcome had counsel objected to the complained-of statements. See

Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5.

       We find counsel’s alleged failure did not result in prejudice to Fogg, and

counsel therefore did not render ineffective assistance.

III.   Conclusion

       Having found the district court correctly denied Fogg’s motion to suppress

and counsel was not ineffective as alleged, we affirm Fogg’s conviction of OWI,

first offense.

       AFFIRMED.
