This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.
Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart (suppression) and Jeffrey L. Harris (trial and sentencing), District Associate Judges. A defendant appeals her convictions for operating while intoxicated and drug possession.
Thomas Frerichs, Frerichs Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Sue Swan and Jeremy Westendorf, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
We are asked to decide if a LaPorte City peace officer violated the Fourth Amendment by stopping a Jeep Cherokee registered in Dubuque County to Andrea Donnan. Donnan claims the officer lacked reasonable suspicion to investigate whether her driving violated the terms of her temporary restricted license. She also maintains the district court erred in refusing to draw an adverse inference from the officer's act of turning off his body microphone for twenty seconds to talk with another officer during the investigatory stop.
Because Donnan was driving outside of normal business hours in a city located ninety minutes from her residence and engaged in conduct indicating she was reluctant to have police see her driving, the officer had reasonable cause to stop the Jeep to confirm or dispel his suspicion Donnan was violating her license restrictions. The district court did not err in denying her motion to suppress evidence of operating while intoxicated (OWI) and drug possession found after the stop. Moreover, we find no legal basis for the suppression court to draw a negative inference from the officer's action. Accordingly, we affirm.
I. Background Facts and Proceedings
Around 10:30 p.m., on May 20, 2011, La Porte City Police Officer Andrew Nissen drove into the parking lot of the local Casey's convenience store. Casey's closes at 11:00 p.m., and the patrol officer made it a practice to swing by the store around closing time. Officer Nissen saw a black Jeep Cherokee parked at a gas pump close to the store. The apparent occupants of the Jeep started walking out of the store toward the vehicle. When they saw the officer, they stopped and retreated into the store.
Officer Nissen ran the Jeep's license plates through the Department of Transportation (DOT) database and determined Donnan was the registered owner, her operating privileges were revoked, she had a temporary restricted license, and she had a Dubuque address. Nissen learned from the driver's license information that Donnan was a twenty-two-year-old white female, who was five feet two inches tall and weighed 130 pounds. The woman he saw approaching the Jeep matched that general description.
Officer Nissen talked to another customer in the parking lot and then left. He returned to the lot and saw the Jeep still parked at the pumps. The occupants were in the vehicle watching the officer for about ten minutes. The young woman matching Donnan's description was in the driver's seat. Officer Nissen then left the area and drove approximately seventy yards down the highway, parked, and turned his vehicle's lights off. Nissen testified he used binoculars to watch and determine the young woman was still in the driver's seat. The Jeep left Casey's parking lot and proceeded down the highway away from the officer's location. The officer followed the Jeep to a nearby motel and made a traffic stop.
Officer Nissen found Donnan in the driver's seat and told her the reason he pulled her over was because she didn't have a license to be driving around in LaPorte City when she was from Dubuque. Nissen asked Donnan if that " made sense" and she agreed it did. Later during the stop, Donnan complained the stop was " unjust," and the officer had " no reason to pull [her] over." The officer told her because she had only a " temporary work license" ...