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State of Iowa v. Larry Hergert

April 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
LARRY HERGERT, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.

The opinion of the court was delivered by: Doyle, P.J.

Larry Hergert appeals his conviction for operating while intoxicated, second offense. AFFIRMED.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

Larry Hergert appeals following his conviction and sentence for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2011). He contends the district court erred in denying his motion to suppress evidence because the arresting officer did not have reasonable suspicion to stop his vehicle. Upon our review, we affirm.

I. Background Facts and Proceedings. The district court found as follows:

On September 25, 2011, at approximately 22:26, Trooper Smith was stopped on the south shoulder of Hickory Grove Road in Davenport, Iowa, on a traffic stop of another vehicle. Trooper Smith was inside his patrol car with his traffic lights activated when a silver 1992 Dodge Caravan came up behind his patrol car travelling eastbound on Hickory Grove Road. As the Dodge Caravan drove past Trooper Smith's patrol car it made no attempt to slow down or move away from his patrol car and just missed striking the patrol car's driver's side mirror. Trooper Smith could hear a loud and rattled exhaust noise coming from the Dodge Caravan.

Trooper Smith pulled out onto Hickory Grove road and turned his traffic lights off. He caught up with the Dodge Caravan and observed the Caravan driving astraddle of the right hand white fog line and was encroaching an area that appeared to be lined off for bicycle traffic. Trooper Smith activated his traffic lights and the Caravan pulled over to the side of the road.

The driver of the Caravan, Larry Hergert, slurred his words when he spoke, his walk was unsteady and his eyes were bloodshot and watery. Trooper Smith could smell a strong odor of alcoholic beverage coming from inside the Caravan. Hergert admitted to consuming alcohol. Hergert consented to a HGN eye examination and Trooper Smith observed sustained and distinct nystagmas present in each of Hergert's eyes. Hergert refused to perform the walk and turn and one leg test. He was placed under arrest and transported to the Scott County jail where he submitted to a breath test which showed his [blood alcohol content] to be .183.

The State filed a trial information charging Hergert with OWI, second offense. Hergert filed a motion to suppress all the evidence obtained as a result of the stop. His motion contended Trooper Smith "initiated the stop without a warrant, without probable cause and without exigent circumstances." He asserted the stop of his vehicle was in violation of his federal and state constitutional rights. After a suppression hearing, the district court denied the motion. Hergert waived a jury trial and stipulated to the minutes of testimony.

Later, a bench trial was held on the minutes of testimony. The district court found Hergert guilty as charged. Hergert now appeals, contending the district court erred in denying his motion to suppress.

II. Scope and Standards of Review.

Hergert invokes both the federal and state constitutional prohibitions against unreasonable searches and seizures, which contain identical language and are generally "deemed to be identical in scope, import, and purpose." See U.S. Const. amend. IV; Iowa Const. art. I, § 8; State v. Fremont, 749 N.W.2d 234, 236 (Iowa 2008). He has not argued that the interpretation of the two provisions should differ. We will therefore construe them together. See Fremont, 749 N.W.2d at 236..

Because Hergert contends the stop violated his rights under the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution, we review his claim de novo. See State v. Fleming, 790 N.W.2d 560, 563 (Iowa 2010). "This review requires an independent evaluation of the totality of the circumstances as shown by the entire record." State v. Pals, 805 N.W.2d 767, 771 (2011) (internal quotation marks and citation omitted).

Although we defer to the factual findings of the district court because of its greater ability to evaluate the credibility of witnesses, we are not ...


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