                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2104
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK DANIEL WHITE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Marsha A.

Bergan, Judge.



      Patrick White appeals his conviction for operating while intoxicated.

AFFIRMED.



      Davis L. Foster of Foster Law Office, P.C., Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.




      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Patrick White appeals his conviction for operating while intoxicated (OWI),

claiming the district court erred in denying his motion to suppress evidence

obtained by law enforcement. We affirm.

      In the late evening hours of October 7, 2013, Jack Swails called 911 and

reported that another motorist, Patrick White, had backed into his vehicle while

they were stopped at a red light. Swails reported the vehicle’s make (Toyota),

model, and license plate number to the 911 operator. Officer Alex Stricker was

dispatched to find the offending vehicle.    Officer Stricker located the Toyota

parked in an open garage and, as he approached the parked vehicle, he

observed White close the driver’s side door. White then walked to the porch of

the adjacent residence and stood on the porch when Officer Stricker initiated

contact. Upon Officer Stricker’s request, White stepped down from the porch and

onto the driveway. After some questioning, White admitted he drank two beers

and a shot that evening. Officer Stricker performed field sobriety tests on White

and, due to the results of those tests, placed White under arrest for OWI.

      On October 21, 2013, White was charged with OWI, third offense, in

violation of Iowa Code section 321J.2 (2013). On January 17, 2014, White filed a

motion to suppress claiming the police officer’s actions constituted an

unreasonable seizure and violated White’s rights under both the Iowa and United

States Constitutions. Specifically, he claimed since he was standing on the front

porch of the residence at the time of the contact with the officer, he was in his

home and the officer unlawfully seized him without a warrant. He also claimed if

the court viewed the incident as a stop of White while he was not in his home, the
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police did not have sufficient cause to pull his vehicle over since they were only

investigating a completed misdemeanor.

       After a hearing, the district court issued an order denying White’s motion

to suppress. White now appeals.

       White claims the district court should have granted his motion to suppress

under both the Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution. Therefore, our review is de novo. 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.”

State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (citation omitted). The court

gives “deference to the factual findings of the district court due to its opportunity

to evaluate the credibility of the witnesses, but [is] not bound by such findings.”

State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007).

       We generally agree with the district court’s opinion; however, we do not

view the police interaction with White as a stop and investigation. See Pals, 805

N.W.2d at 774 (describing a Terry stop). The issue on appeal is properly viewed

as whether an unlawful seizure occurred when Officer Stricker initiated contact

with White in the course of investigating White’s violations earlier in the evening.

See State v. Wilkes, 756 N.W.2d 838, 842–43 (Iowa 2008) (finding seizure

occurred after the officer developed reasonable suspicion the defendant had

been driving while intoxicated after questioning the defendant who was found in a

parked car with a running engine).

       Whether a “seizure” occurred is determined by the totality of the

circumstances. United States v. Drayton, 536 U.S. 194, 207 (2002). “Factors
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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.’” Wilkes, 756 N.W.2d at 842–43 (citing

United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In contrast, “otherwise

inoffensive contact between a member of the public and the police cannot, as a

matter of law, amount to a seizure of that person.” Mendenhall, 446 U.S. at 555.

       Upon our de novo review and considering the “totality of the

circumstances,” we find an unlawful seizure did not occur, and Officer Stricker

developed reasonable suspicion to believe White had been driving while

intoxicated based on his interactions with White prior to the seizure. See Wilkes,

756 N.W.2d at 844.       Up to the point where Officer Stricker observed White

exhibiting signs of intoxication, the interaction between Officer Stricker and White

was consensual and not a “seizure.”          The district court summarized this

interaction in the following fashion:

              Then, while standing on the driveway/sidewalk area, Officer
       Stricker asks Mr. White, who is still on the porch: “Can you step
       down here and talk with me?” The Court hears no response from
       Mr. White. Officer Stricker then steps up one porch step and says
       to Mr. White: “I need you to step down and talk with me.” Mr. White
       then steps down to the driveway with Officer Stricker. Officer
       Stricker shines his flashlight from the last porch step to the
       driveway to light the path for Mr. White. At the hearing, Officer
       Stricker essentially testifies that he intended to direct Mr. White to
       come off the porch. Mr. White essentially testifies that he viewed
       Officer Stricker’s statement to be a directive to come down off the
       porch. The Court, however, notes that Officer Stricker did not act to
       compel Mr. White to step down to the driveway. Officer Stricker
       was the only officer at the scene at that time. He had not drawn his
       weapon. He did not shine a flashlight in Mr. White’s face. He did
       not touch Mr. White. He did not speak in a loud or demanding tone.
       He made no threats. Mr. White was close to the door of his house.
                                        5


      He is a larger man than Officer Stricker. He was at his home. Mr.
      White could have turned around and entered the house and locked
      the door. The Court finds that, instead, Mr. White chose to step
      down to the driveway as requested just as he had earlier chosen
      not to enter his home when the squad car pulled into the driveway.

      Additionally, we agree with the district court’s analysis of Florida v.

Jardines, 133 S. Ct. 1409 (2013), and find Officer Stricker did not violate White’s

privacy by entering the porch area of White’s residence. The court reasoned:

              In Jardines Justice Scalia makes it clear that a porch is an
      area “where ‘privacy expectations are most heightened.’” Jardines,
      133 S.Ct. at 1415 (citing California v. Ciraolo, 476 U.S. 207, 213
      (1986)). Thus, the search warrant in Jardines could not be upheld,
      because it was based on information obtained as a result of the
      police bringing dogs to a citizen’s porch to conduct a sniff for drugs.
      Jardines, 133 S. Ct. at 1415–17. The Jardines search (by officers
      directing the dog sniff) was conducted on the porch without the
      porch-owner’s consent. As Justice Scalia wrote in Jardines: “Here
      their behavior objectively reveals a purpose to conduct a search,
      which is not what anyone would think he had license to do.” Id. at
      1417. The officers’ action with their canines in Jardines is
      distinguishable from what Justice Scalia noted has previously been
      accepted as a limited license of officers to come onto a porch.
      “Thus, a police officer not armed with a warrant may approach a
      home and knock, precisely because that is ‘no more than any
      private citizen might do.’” Id. at 1416 (citing Kentucky v. King, 563
      U.S. 452, 469, (2011)). “[T]he occupant has no obligation to open
      the door or to speak.” King, 563 U.S. at 469–70.
              So it is with Officer Stricker and Mr. White. Officer Stricker
      had a limited license to take a step on to the porch to ask Mr. White
      to speak with him. Mr. White had no obligation to step down to the
      driveway and speak with the officer. He could have turned around,
      entered his home, and closed the door. The Court concludes that a
      reasonable person would not have felt compelled to yield to Officer
      Stricker’s request and statement to step off the porch to the
      driveway to speak with the officer.

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

      AFFIRMED.

      McDonald, J., concurs; Tabor, P.J., dissents.
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TABOR, Presiding Judge. (dissenting)

       I respectfully dissent.     I believe the district court should have granted

Patrick White’s motion to suppress evidence of his intoxication because the

police officer violated White’s rights under the Fourth Amendment of the Federal

Constitution and article I, section 8 of the state constitution by seizing him outside

of his home based on nothing more than reasonable suspicion of a completed

simple-misdemeanor driving offense.1

       At about 10:30 p.m. on October 7, 2013, White parked his Toyota in his

garage and walked toward the front steps of his residence. Just before White

opened the door to his house, Officer Stricker turned into White’s driveway and

parked his patrol car “right over the sidewalk.” The uniformed officer turned on

his overheard emergency lights, referred to as “cherries” in the suppression

hearing. The officer left his patrol car and approached White, who had ascended

the three steps of his front porch. The officer first inquired: “What’s going on

tonight man?” The officer also asked White where he was coming from and if he

was carrying identification.

       Officer Stricker—who was standing in the driveway—then said: “Can you

step down here and talk with me?” As Stricker made the request, he took a

single step up toward White. When White did not respond, the officer said: “I

need you to step down and talk with me.” The officer acknowledged at the



1
  On appeal, the State argues the officer’s initial interaction with White was not a seizure
but does not argue the district court was correct in holding “a per se prohibition against a
Terry stop when an officer has reasonable suspicion of a completed misdemeanor would
be a dangerously rigid application of law.” Because the State does not pursue this
question left open in State v. Pals, 805 N.W.2d 767, 774 (Iowa 2011), I do not believe it
is a viable basis for upholding the district court’s denial of the motion to suppress.
                                         7


suppression hearing that the second statement was a directive to White. White

complied as the officer shined his flashlight from the last porch step toward the

driveway to light a path for White.      The dash-cam video shows the officer

continued to shine his flashlight toward White during their encounter.

       The district court opined that when faced with this situation, White “could

have turned around and entered the house and locked the door” but instead

“chose to step down to the driveway as requested.” Although seeming to find no

seizure, the district court nevertheless determined the officer was engaged in a

Terry stop to investigate the simple-misdemeanor hit-and-run reported by

another motorist. Taking a different route than the district court, the majority

declines to view the officer’s interaction with White as a “stop and investigation.”

Instead, the majority finds the encounter was consensual and not a seizure. I

disagree.

       When an officer, by means of physical force or a show of authority,

restrains the liberty of a citizen, a seizure occurs. Terry v. Ohio, 392 U.S. 1, 20

(1968). As the majority correctly notes, we look at the totality of circumstances to

decide whether an officer’s interaction with a citizen amounts to a Fourth

Amendment seizure.

       Here, the evidence established the officer exercised his authority to

request White to stop, rendering the encounter a seizure. See State v. Williams,

No. 14-1495, 2015 WL 7567544, at *2 (Iowa Ct. App. Nov. 25, 2015) (reversing

denial of motion to suppress when officer briefly sounded his siren to catch

suspect’s attention). Several factors lead me to this conclusion. First, the officer

activated his emergency lights when he parked in White’s driveway. See State v.
                                         8

Wilkes, 756 N.W.2d 838, 844 (Iowa 2008) (explaining use of ordinary headlights

at night is “not coercive in the same manner as the activation of emergency lights

which invoke police authority and imply a police command to stop and remain”).

       Second, the officer blocked White’s driveway with his patrol car. While

White could conceivably have entered his house, he could not have left in his

Toyota. See id. (noting restriction of egress is a factor in analyzing consensual

nature of encounter with police).

       Third, the officer by his own admission ordered White to step off the porch

and speak to him. Police questioning alone generally does not mean the citizen

is seized. See State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004). But “if the

person refuses to answer and the police take additional steps . . . to obtain an

answer, then the Fourth Amendment imposes some minimal level of objective

justification to validate the detention or seizure.” I.N.S. v. Delgado, 466 U.S. 210,

216-17 (1984).

       Here, the officer took the extra measure of directing White to move to a

specific space and mandating he talk with the officer, while shinning his flashlight

on White and using the light to direct White toward him. See Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010) (noting the officer’s “act of shining his

patrol car’s overhead lights in the appellant’s direction, coupled with his request-

that-sounded-like-an-order, to ‘come over here and talk to me,’ caused the

appellant to yield to Griffin’s show of authority—a reasonable person in the

appellant’s shoes would not have felt free to leave or decline the officer’s

requests”). A reasonable person who received Officer Stricker’s directive—while

bathed in the flashing red lights of his patrol car—would not have felt free to turn
                                           9

heel and go into his residence. See United States v. Mendenhall, 446 U.S. 544,

554 (1980) (explaining person has been “seized” for Fourth Amendment

purposes if, in view of all circumstances surrounding the incident, “a reasonable

person would have believed that he was not free to leave”).

       I believe the district court should have suppressed all evidence obtained

as a result of the officer’s illegal seizure of White. I would reverse and remand

for a new trial excluding that evidence.
