from the Iowa District Court for Woodbury County, Timothy T.
Jarman, District Associate Judge.
defendant appeals from the denial of his motion to suppress.
REVERSED AND REMANDED.
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
Schable was a passenger in a parked vehicle about which a
concerned individual called local police. Officers arrived
and made contact with the driver, who appeared to be under
the influence. An officer had Schable exit the vehicle and
then patted him down. After hearing a crinkle when he patted
Schable's shirt pocket, the officer reached into the
pocket and found a small amount of marijuana in a cellophane
package. Schable filed a motion to suppress, in which he
argued officers did not have the requisite level of suspicion
to stop the vehicle and detain him. He also argued the
officers did not have the requisite level of suspicion to
conduct a pat down of his person or to reach into his shirt
district court denied Schable's motion to suppress, and
Schable was found guilty of possession of a controlled
substance (marijuana) after a trial to the bench.
appeal, he maintains the district court should have granted
his motion to suppress. He raises the same two issues as he
did in his motion to suppress, as well as a number of
additional claims of constitutional error that he raises
under the ineffective-assistance-of-counsel framework.
Background Facts and Proceedings.
approximately 7:30 a.m. on April 26, 2016, an individual
called local police about a silver van that was parked in the
parking lot of her apartment building. The individual
reported she witnessed the van pull into the parking lot,
nearly striking two vehicles in the process. Officers Carl
Ragar and Eddie Thiphasouk responded to the call in two
separate police vehicles. Officer Ragar arrived first, noting
the van was parked straddling the line in two parking spaces.
Both tires on the passenger side of the van were completely
flat, and it appeared they had been driven on that way.
Additionally, some "fresh" damage to the passenger
side of the vehicle-white paint that had not yet become
Ragar made contact with the driver of the vehicle. At the
time, Schable was sitting in the passenger seat and a third
person was asleep or passed out in a back seat. The driver
appeared to be under the influence; his speech was slurred
and very slow, and he had trouble with his fine motor skills
when responding to the officer's directions. As neither
Officer Ragar nor Officer Thiphasouk had the necessary device
to conduct a preliminary breath test (PBT), they called for a
third officer to bring one.
timing is unclear, but either while or after the other two
officers conducted the PBT with the driver, Officer Ragar
approached the passenger side of the vehicle and began to
speak with Schable. The officer testified he asked Schable
for his identification, which Schable provided. From his
position near the vehicle, Officer Ragar ran the information
to check for any outstanding warrants and determined Schable
did not have any. Next, Officer Ragar "continued talking
to [Schable]" because he "knew something was
impairing the driver so [he] was assuming there might be some
drugs in the vehicle. Just because the driver seemed to be
impaired." Then Officer Ragar "had the passenger
step out, " and "asked him if he had anything
illegal on him and [Schable] looked down at the ground."
Officer Ragar moved on to more specific questions, asking
Schable if he had guns or knives; Schable responded
"no" to each question. Officer Ragar then asked
Schable, "Do you have any drugs?" Schable did not
respond, which made the officer think Schable
"[p]ossibly, yes" had drugs on his person.
direct examination during the suppression hearing, Officer
Ragar testified as follows:
Q. So you thought well, maybe, it's possible that he has
drugs on him?