                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0132
                               Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN DALE DUNN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



      The defendant appeals from the district court’s denial of his motion to

suppress. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.

       Ryan Dunn appeals the district court’s denial of his motion to suppress.

Dunn concedes that he initially engaged in a consensual interaction with police

officers but argues actions taken by officers during the encounter resulted in the

unconstitutional seizure of his person.       He also argues his vehicle was

unconstitutionally searched without a warrant and without an applicable exception

to the warrant requirement. Finally, Dunn argues, in the alternative, that he was

subject to custodial interrogation without receiving a Miranda warning.

I. Background Facts and Proceedings.

       On March 10, 2017, at approximately 1:25 a.m., two police officers—in two

separate marked police cars—pulled into an area with freestanding gas pumps but

no store or building nearby. The officers pulled in behind a vehicle they noticed

had been parked there for several minutes with the driver’s door open. According

to their testimony, the officers intended to check on the driver and make sure there

was nothing wrong with him or the vehicle.

       Officer Andrej Klaric exited his vehicle at about the same time Dunn exited

the vehicle parked at the gas pump; they met in the space between the two

vehicles. Officer Klaric told Dunn he saw his driver’s door was open and was “[j]ust

making sure everything’s okay.” Dunn reported he stopped at the gas pump after

work and then realized he did not have his debit or credit card with him; he was

waiting at the pump until his friend arrived with the card. Dunn and Officer Klaric

engaged in a conversation: Dunn told Klaric he remembered him from another time

he was stopped and Klaric asked Dunn if he was still working at the same job he

had been before. At some point during the conversation, Officer Klaric asked Dunn
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for his driver’s license; Dunn gave it to him, and Officer Klaric handed it to the

second officer, Officer Dilok Phanchantraurai, who checked the license by radioing

to dispatch.

       While Officer Phanchantraurai had Dunn’s license, Officer Klaric asked

Dunn if he had any weapons on him. According to Klaric, he did not have any

suspicions of illegal activity but always asks about weapons when he makes

“contact with somebody out in the field . . . for [his] own safety and their own safety.”

Dunn responded that he had a pistol in an ankle holster, and Officer Klaric asked

Dunn to show him his permit to carry the firearm. Dunn handed Officer Klaric his

permit, which had expired more than two months earlier. Officer Klaric then

informed Dunn his permit was expired, patted Dunn down, and removed the loaded

gun from Dunn’s ankle holster.

       Officer Klaric asked Dunn if he had any more firearms in the vehicle. Dunn

stated there were magazines for a firearm in the vehicle. When asked, Dunn

denied consent to search the vehicle. Klaric then handcuffed Dunn and placed

him in the back of his squad car. Klaric searched the vehicle and found a second

gun and the magazines. He placed Dunn under arrest for carrying a weapon.

Before transporting him to the station for booking, Officer Klaric got Dunn’s consent

to move his car—rather than have it towed.             During the booking process,

methamphetamine was located in Dunn’s wallet.

       Dunn was charged by trial information with carrying weapons and

possession of a controlled substance (methamphetamine). He filed a motion to

suppress, claiming the officers had seized him “after the purpose of the stop had
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been resolved,” he should have been advised of his Miranda rights before being

questioned, and the search of his vehicle was unconstitutional.

      The district court denied Dunn’s motion to suppress. The court found that

the initial encounter between Dunn and the officers “was consensual. There was

no stop. The officers didn’t use their red lights. They didn’t pull the defendant

over. They just—the defendant was parked, and they just pulled up to him and

everybody got out of their car and talked.” The court distinguished the facts from

the recent State v. Coleman, 890 N.W.2d 284, 300–01 (Iowa 2017), in which our

supreme court held that an officer could not extend a stop to ask for the driver’s

identification after the purpose of the stop had been resolved. Here, the district

court noted, “[U]nlike Coleman this wasn’t a stop situation. They didn’t stop

anybody. They just went up and talked to Mr. Dunn, and then I think we do move

into the cases that talk about consensual encounters.” Additionally, the district

court found:

      It was about as minimally intrusive as a conversation between law
      enforcement and a citizen can get. The officer’s just concerned
      about his safety, and just asks while we’re waiting here talking,
      making sure the defendant’s not armed.
             So I don’t think that the question about having a weapon
      was—was inducing cooperation to answer that question by coercive
      means. I think it was just a consensual meeting between the officer
      and the defendant, and I don’t think a reasonable person in the
      position of the defendant would have believed he wasn’t free to leave
      if he hadn’t responded. I don’t think the officer raised his voice. I
      don’t think he used coercive methods.

      Dunn waived his right to a jury trial and agreed to a trial on the stipulated

minutes of evidence. At the trial, the State orally moved to dismiss the count for

possession of a controlled substance (methamphetamine); the court granted the

motion.
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       The court found Dunn guilty of carrying weapons, in violation of Iowa Code

section 724.4(1) (2017). Dunn appeals.

II. Standard of Review.

       We review de novo a ruling on a motion to suppress raised on constitutional

grounds. See State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). “This review

requires ‘an independent evaluation of the totality of the circumstances as shown

by the entire record.’” Id. (citation omitted). We give “deference to the factual

findings of the district court due to its opportunity to evaluate the credibility of the

witnesses,” but we are not bound by the district court’s findings. Id.

III. Discussion.

       Dunn raises a number of alternative arguments regarding alleged

constitutional violations he believes should result in the suppression of evidence.

       A. Seizure.

       Dunn concedes that his initial encounter with Officer Klaric—when Dunn

exited his vehicle, walked up and met the officer, and began conversing—was a

consensual encounter. However, he maintains he was seized either when Officer

Klaric obtained Dunn’s license and handed it to Officer Phanchantraurai or when

Officer Klaric asked Dunn if he had any weapons on him.

       An officer is allowed to “approach[] individuals on the street or in other public

places and put[] questions to them if they are willing to listen.” State v. Reinders,

690 N.W.2d 78, 82 (Iowa 2004) (quoting United State v. Drayton, 536 U.S. 194,

200 (2002)). “Even when law enforcement officers have no basis for suspecting a

particular individual, they may pose questions, [and] ask for identification . . .
                                          6

provided they do not induce cooperation by coercive means.” Id. (quoting Drayton,

536 U.S. at 201).

       In Reinders, our supreme court was asked to determine whether the

defendant was “in effect, detained when [officers] asked him for identification

because under the totality of the circumstances ‘no reasonable person would have

felt free to simply walk away and refuse to answer the officer’s questions.’” 690

N.W.2d at 83. The court held that “no seizure occurs when an officer merely asks

for identification.” Id. (citing State v. Smith, 683 N.W.2d 542, 543 (Iowa 2004)). In

reaching this conclusion, the court noted, “there was no show of authority, no

intimidation, and no use of physical force by the officers in their encounter with [the

defendant].”   Id.   Additionally, the court “found no basis to distinguish the

protections afforded by the Iowa Constitution from those afforded by the federal

constitution under the facts of this case,” and its “discussion of the merits of the

defendant’s motion to suppress applies equally to the state and federal grounds.”

Id. at 82.

       Dunn argues the supreme court’s ruling in Coleman changes our analysis

and requires us to consider whether the initial reason for the police officers’

involvement with Dunn was completed before he was asked to provide his

identification. We disagree. Coleman contemplated the extension of a traffic stop

beyond the time it was reasonably necessary to complete the stop. 890 N.W.2d

at 300–01. But, as the district court noted and Dunn conceded, this encounter

between the officers and Dunn did not begin as a traffic stop. We agree that

Coleman—and Rodriguez v. United States, 135 S. Ct. 1609, 1612–17 (2015)—

stand for the proposition that officers are only allowed to detain a person so long
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as they have a reasonable suspicion or probable cause to support doing so. But

the point of a consensual encounter is that the person is not being detained by law

enforcement—they are participating at their own choice, without being coerced to

do so. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (noting a seizure does not

occur if a reasonable person would feel free to disregard the police and go about

their business); State v. Wilkes, 756 N.W.2d 838, 843 (Iowa 2008) (“It . . . appears

that objective indices of police coercion must be present to convert an encounter

between police and citizens into a seizure.”). Thus, we agree with the State that

the appropriate question is whether the actions of the officers converted the

encounter from one of a consensual nature to a seizure. See Wilkes, 756 N.W.2d

at 843.

        The district court credited the officers’ testimony that Officer Klaric and Dunn

“just talked” without any coercive actions taken on the part of Officer Klaric. There

was no indication Dunn ever indicated he did not want to provide Klaric with his

identification or answer the question about whether Dunn was armed.                See

Reinders, 690 N.W.2d at 82 (“Clearly, though, when a citizen exercises his right to

refuse to answer questions and the authorities take additional steps to elicit the

requested information, a seizure or detention has occurred.”). Although Dunn was

not told he was free to leave or to refuse to participate in the conversation, an

individual’s response to questions can be consensual “even though the person has

not been advised that he is free to refuse to respond.” Id. The officers made no

show of authority, other than wearing their uniforms and arriving in marked police

cars.     See id.; see also Wilkes, 756 N.W.2d at 843 (noting “coercion is not

established by ordinary indicia of police authority”; merely showing a badge,
                                         8


wearing the uniform, or being visibly armed should have little weight in the

analysis). Dunn argues the fact that Officer Klaric handed his license to Officer

Phanchantraurai effectively meant Dunn could not leave, but our supreme court

was faced with similar facts in Reinders—where the officer took identification from

the defendant and then walked away to his squad car to check the information—

and found that no seizure had taken place, as “[t]he defendant willingly answered

the officers’ questions and provided identifying information.” 690 N.W.2d at 83.

       Based on the testimony the district court found credible, nothing in the

record convinces us Dunn was seized by the officers during the time Dunn and

Officer Klaric spoke. See id. at 82 (“A seizure occurs when an officer by means of

physical force or show of authority in some way restrains the liberty of a citizen.”

(quoting State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997))).

       B. Search of Automobile.

       Dunn maintains the search of his automobile violated his constitutional

rights and evidence should be suppressed as result. We agree with the State that

even if Dunn’s car should not have been searched, the admission of any evidence

found in the car—the second gun and the magazines—was harmless error. See

State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001) (“In order for constitutional error

to be harmless, the court must be able to declare it harmless beyond a reasonable

doubt.” (citation omitted)). There were three alternatives the State could establish

in order to obtain a conviction for carrying weapons: “that [Dunn] did go armed with

a dangerous weapon concealed on or about the person; or that he was armed with

a loaded firearm within the city limits of Ames, Iowa; or that he did knowingly carry

a loaded pistol in a vehicle.” See Iowa Code § 724.4(1). Here, the court concluded
                                         9


the State met its burden as to all three alternatives. But only one alternative was

necessary for a guilty verdict, and even if the evidence of the second gun was

suppressed, there is no reason to believe it would change the court’s ruling as to

the first two alternatives.

       We do not consider this argument further.

       C. Custodial Interrogation.

       Dunn maintains he was in police custody and subjected to interrogation

“once Klaric requested and retained his driver’s license and then conducted a

weapons inquiry.” See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (requiring

a person to be advised of certain constitutional rights so long as the person is both

in custody and subjected to interrogation). Although the State does not contest

error preservation, Dunn recognizes error may not have been preserved on this

argument and asks, in the alternative, that we consider this claim under the

framework of ineffective assistance of counsel. See State v. Lucas, 323 N.W.2d

228, 232 (Iowa 1982) (recognizing a claim of ineffective assistance of counsel is

an exception to the general rule of error preservation). The district court denied

Dunn’s motion to suppress, but we have not found any indication the court

considered and ruled upon Dunn’s argument regarding custodial interrogation and

the lack of a Miranda warning.       Thus, we consider Dunn’s claim under the

ineffective-assistance framework.

       To succeed on his claim, Dunn has the burden to “show by a preponderance

of the evidence that his trial counsel failed to perform an essential duty and

prejudice resulted.” State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). Here,

Dunn’s claim fails because “counsel has no duty to raise issues that have no merit.”
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State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).            As we have already

determined, Dunn was not seized by the police officers during the time he chose

to engage in conversation with Officer Klaric. And Dunn cannot be in police

custody when he was not even seized. See, e.g., Berkemer v. McCarty, 468 U.S.

420, 440 (1984) (“The similarly noncoercive aspect of ordinary traffic stops

prompts us to hold that persons temporarily detained pursuant to such stops are

not ‘in custody’ for the purposes of Miranda.”); State v. Scott, 518 N.W.2d 347, 350

(Iowa 1994) (“The right to interrogate during a ‘stop’ is the essence of Terry and

its progeny.” (citation omitted)).

IV. Conclusion.

       We affirm the district court’s denial of Dunn’s motion to suppress.

       AFFIRMED.
