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State v. Flippo

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ZACHARY LYNN FLIPPO, Defendant-Appellant.

         Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.

         Zachary Flippo appeals the judgment and sentence entered following his conviction for possession of marijuana.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Sarah Keely, Student Legal Intern, for appellee.

          Heard by Doyle, P.J., Tabor, J., and Goodhue, S.J. [*]

          DOYLE, PRESIDING JUDGE.

         Zachary Flippo appeals the judgment and sentence entered following his conviction for possession of marijuana. Flippo challenges the denial of his motion to suppress evidence obtained during a traffic stop of a car in which he was a passenger, arguing the prolonging of the stop to allow a sniff by a drug dog amounted to an unconstitutional seizure.

         I. Background Facts and Proceedings.

         Waterloo Police K-9 Officer Albert Bovy was on third-shift patrol with his police dog on February 10, 2015, when he noticed the license plate light on a car driven by Mikayla Elliot-Wach was not functioning. At around 1:37 a.m., Officer Bovy initiated a traffic stop. While Elliot-Wach attempted to locate her proof of vehicle insurance, Officer Bovy checked her record as well as the record of Flippo, her passenger. Officer Bovy learned there was an outstanding warrant for Flippo's arrest in another jurisdiction but the issuing agency would not come to Waterloo to execute the warrant because of the distance involved.

         Upon returning to the car, Officer Bovy learned that Elliot-Wach was unable to locate proof of insurance. The officer also confirmed that Flippo was aware of the warrant for his arrest. Officer Bovy then asked Elliot-Wach if there was anything illegal in the car. The officer testified about his observations[1] of Elliot-Wach's reaction:

She got very quiet, looked down. I asked her if I could search the vehicle. She hesitated, looked down again, and then she asked . . . something to the effect [of], "Do I have the right to say no?" I said, "Yes, you have the right to say no on . . . me personally searching your vehicle." . . . Her whole demeanor changed when I had started that conversation, and I'm not sure if she actually answered then or if I just told her I have my dog, I'll just run my dog around the vehicle.

         Elliot-Wach and Flippo were told to exit the car so that Officer Bovy could conduct a dog sniff of the car. After the pair got out of the car, Officer Bovy walked his K-9 partner, Niko, around the car to conduct a sniff test for controlled substances. At around 1:55 a.m., Niko indicated the presence of controlled substances in the car. The officer searched the glove compartment and found a small plastic bag containing marijuana and a partially burnt marijuana blunt. After the officer apprised both Elliot-Wach and Flippo of their rights, Flippo described to the officer what controlled substance was in the car, explained where it was located, and stated that it belonged to him.

         The State charged Flippo with possession of marijuana, first offense, in violation of Iowa Code section 124.401(5) (2015), a serious misdemeanor. Flippo moved to suppress the evidence discovered during the vehicle search, arguing the search violated his rights under the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. Specifically, he claimed that he was unlawfully seized while Niko sniffed around the car. After a hearing, the district court denied the motion. Flippo waived his right to a jury trial, and after a trial on the minutes of evidence, the district court found Flippo guilty of possession of marijuana.

         II. Scope and ...


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