Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.
Seth Leaton challenges the district court's denial of his motion to suppress.
Nathan W. Tucker, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Janet M. Lyness, County Attorney, and Elizabeth Beglin, Assistant County Attorney, for appellee.
Heard by Potterfield, P.J., and Danilson and Mullins, JJ.
Seth Leaton challenges the district court's denial of his motion to suppress. Because the pat-down search was not supported by reasonable suspicion the defendant was armed and because the State failed to prove the defendant consented to the search of his person, the district court erred in failing to grant the defendant's motion to suppress. We reverse and remand.
I. Background Facts and Proceedings.
On August 13, 2011, at about 11:00 p.m., Officer Chris Shine observed a vehicle with the red covering of the taillight broken. He stopped the vehicle. The driver, Leaton, provided to the officer the written warning for the broken taillight Leaton had been issued just days before. While Officer Shine was examining Leaton's paperwork, he asked Leaton if he was "on probation or parole or anything like that, if [he had] ever been in trouble." Leaton replied that he had previously been arrested for possession of marijuana. He was not on probation.
After preparing a written warning in his patrol car, Officer Shine returned to Leaton's vehicle and asked him to get out of the car. Leaton asked the officer why, and the officer told him he wanted to show Leaton the taillight. As Leaton got out of the car, Officer Shine asked if he could pat him down. According to the officer, Leaton did not give a verbal response. The officer stated, "I believe he shrugged his shoulders. He never—He never told me no, that I couldn't."
Upon conducting the pat-down search, Officer Shine found a marijuana pipe and a baggy of marijuana in a cargo pocket of Leaton's pants.
Leaton was arrested and charged with possession of a controlled substance, marijuana. He filed a motion to suppress, alleging that the pat-down search was in violation of both the lowa and United States Constitutions. He argued there was no reasonable suspicion that he was armed to support a protective frisk under Terry, and "to the extent the State may try to justify the frisking based on some consent theory, the consent would not have been voluntary." Leaton also asserted "even a request for consent to search incident to traffic offense would need to be supported by at least reasonable suspicion, " citing State v. Pals, 805 N.W.2d 767, 776 (Iowa 2011).
A hearing was held on the motion on March 26, 2012. Officer Shine testified he asked to search Leaton because "[t]he time of the night, umm, and also the—we never know what we're going to find on people when we ask them out of a vehicle." On cross-examination, Officer Shine was asked "just to clarify, there was absolutely no suspicion on your part in this particular case that he had any kind of weapon?" Officer Shine responded, "At that point, I have no idea." The officer stated that if Leaton had declined to consent to the pat-down search, he would have told Leaton to sit back down in his car.
Leaton testified at the hearing and described being stopped three days before August 13 for the broken taillight. On that first occasion, the officer asked for consent to search his vehicle. Leaton declined and was given a written warning for the taillight. On August 13, when he was again stopped, Leaton testified the officer asked him to step out of the vehicle to "show me where ...