Appeal from the Iowa District Court for Polk County, James D. Birkenholz, District Associate Judge.
Joshua Carmody appeals from judgment and sentence entered following his convictions for operating a motor vehicle while intoxicated and possession of a controlled substance.
Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney General, John P. Sarcone, County Attorney, and James T. Hathaway, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
Joshua Carmody appeals from the judgment and sentence entered following his convictions for operating a motor vehicle while intoxicated (OWI) and possession of a controlled substance. He argues the district court erred in denying his motion to suppress. We agree, and therefore, reverse and remand.
I. Background Facts and Proceedings.
On September 12, 2012, Des Moines police officers observed an oncoming Cadillac DeVille without a front license plate. They turned their squad car around to initiate a traffic stop. Once behind the Cadillac, one of the officers observed a temporary plate displayed in the back window of the car. The Cadillac stopped, and the officers parked behind it. As the officers approached the car, they noticed a strong odor of marijuana coming from the car. One of the officers had Carmody, the driver, step out of the car. Another officer, called to the scene to assist, talked to Carmody. Carmody's speech was very slow and mumbled. The officer observed that his eyes were bloodshot. Not smelling any odor of an alcoholic beverage, the officer asked Carmody to stick out his tongue. Carmody complied, and the officer observed a heavy greenish/white coating on the tongue along with multiple heat bumps. When asked when the last time he had smoked marijuana, Carmody responded, "earlier today." During this time, another officer discovered a bag of marijuana in the glove box of the car. Carmody answered "yes" when he was asked if the marijuana was his.
Carmody was ultimately arrested and charged by trial information with operating a motor vehicle while under the influence of alcohol or a drug, a serious misdemeanor, in violation of Iowa Code section 321J.2 (2011), and with possession of a controlled substance, a serious misdemeanor, in violation of Iowa Code section 124.401(5).
Carmody filed a motion to suppress challenging the legality of the stop. After the court denied the motion, Carmody waived his right to a jury trial and stipulated to a trial on the minutes. The court found Carmody guilty of OWI, first offense, and it sentenced him to one year of incarceration, with all but three days suspended, and with credit for one day served. The court also found Carmody guilty of possession of a controlled substance and sentenced him to one year of incarceration, with all but three days suspended, and with credit for one day served. The possession sentence was ordered to be served consecutive to the OWI sentence. Carmody was ordered to pay fines, surcharges, and court costs.
Carmody now appeals.
Because of the constitutional dimensions of Carmody's claims, our review is de novo. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). Carmody contends the stop was not justified by any traffic violation and the seizure violated his rights under the Fourth Amendment of the United States Constitution and the laws and Constitution of the State of Iowa. Federal and state constitutional search and seizure principles applicable to traffic stops were thoroughly discussed recently in State v. T ...