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State v. Schable

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
AUSTIN MICHAEL SCHABLE, Defendant-Appellant.

          Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.

         The defendant appeals from the denial of his motion to suppress. REVERSED AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, Judge.

         Austin 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 pocket.

         The 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.

         On 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.

         I. Background Facts and Proceedings.

         At 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 dirty-was noticeable.

         Officer 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.

         The 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.

         During 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?

A. ...


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