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State v. Morris

Court of Appeals of Iowa

February 5, 2014

STATE OF IOWA, Plaintiff-Appellee,
v.
LARRY GENE MORRIS, Defendant-Appellant

Editorial Note:

This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.

Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. Rosenbladt, Judge. Defendant appeals the district court's denial of his motion to suppress evidence.

Colin C. Murphy of Colin Murphy, P.C., Clear Lake, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Carlyle D. Dalen, County Attorney, Nichole Benes and William Hoekstra, Assistant County Attorneys, and Perry Shoemaker, Student Legal Intern, for appellee.

Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ.

OPINION

DANILSON, C.J.

Larry Morris appeals the district court's denial of his motion to suppress evidence. He contends the district court erred by admitting evidence obtained after his arrest because the arrest was without probable cause. In the alternative, he maintains the results of the breath test must be suppressed even if the arrest was lawful because his initial refusal to submit to testing was irrevocable. Because we find the officer had probable cause to arrest Morris, no Fourth Amendment violation occurred. Furthermore, Morris's initial refusal did not preclude the officer from honoring his later request to voluntarily submit to chemical testing. Under these facts, the test results were admissible. We affirm the district court's denial of Morris's motion to suppress.

I. Background Facts and Proceedings.

The facts are largely undisputed, and we accept the findings of fact of the district court:

On September 13, 2011, Gloria Atkinson was driving her vehicle in the city of Clear Lake, Iowa, and had as passengers her twelve and fourteen year old children. This was a Thursday night, and Ms. Atkinson had just picked up her daughter from an activity, and her daughter was seated in the front seat. They were driving in the vicinity of the Yacht Club and Chambers of Commerce Center in the City Beach area of Clear Lake. Ms. Atkinson noted that there were several " kids" in the City Beach area, who appeared to be preparing to " teepee" some houses or trees because of homecoming. Ms. Atkinson noted a Clear Lake Patrol car in the area of City Beach, and assumed that the officer was watching the beach area and the " kids."
As Ms. Atkinson was driving in the vicinity of City Beach, her car was clearly in her lane of travel. This street has bicycle lanes on the sides. She noted that it was a " beautiful night" and that she was trying to get her children home so they could shower and prepare for school the next day. Another vehicle then approached her vehicle, and the other vehicle was traveling in Ms. Atkinson's lane. Ms. Atkinson testified that she " took the curb," to avoid a collision with the other vehicle. Despite missing the other vehicle, Ms. Atkinson testified that it came " really close" to her car. Ms. Atkinson testified that she was " totally freaked out" by this event, and she thought immediately to drive over to the police car she saw by the beach and report the incident. She drove over to the Clear Lake Police car, which was occupied by Lt. Deb Ryg. " Still in shock," she reported to Officer Ryg the event concerning the other vehicle, stating that a big truck or SUV, maroon in color, had almost struck her. She did not see the license plate number. However, she did see the driver of the other vehicle clearly, noting that he had a cigarette in his mouth, and despite the brief encounter, he did appear to be intoxicated. On cross-exam, Ms. Atkinson indicated that she could not tell the exact speed of the other vehicle, there was no squealing tires, and she described the color of the vehicle as maroon, with hints of red, although not a " true red."
Lt. Deb[ ] Ryg works for the Clear Lake Police Department. She has worked there for about thirteen years. She has an AA degree from NIACC in law enforcement, and is working on a bachelor's degree. She has been a lieutenant for approximately two years. Her normal shift is from 5:00 o'clock p.m. to 3:00 o'clock a.m. She was working on September 13, 2011, in the City of Clear Lake. Between 9:00 o'clock and 9:30 o'clock p.m., Lt. Ryg had parked her patrol vehicle at North Lakeview Drive and Main Street, was working on reports, and observing the area in general. Lt. Ryg was approached by Ms. Atkinson, who in a loud and excited voice, related what Ms. Atkinson had seen regarding the near collision.
Ms. Atkinson explained to Officer Ryg that a Jeep-type vehicle had almost hit her, and that she had to pull up onto a curb to avoid the collision. Ms. Atkinson described the driver of the other vehicle to Lt. Ryg, as being between 60 to 70 years old, looking intoxicated, with a cigarette hanging out of his mouth. Upon hearing that information, Lt. Ryg recalled that she had seen a Jeep-type vehicle drive by her just a few moments earlier, and that the Jeep had a spare tire on the back with a Chicago Bears spare tire cover. Due to the timing of the events, and her location, ...

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