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State v. Ewalt

Court of Appeals of Iowa

October 24, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
LOWELL ALLAN EWALT, Defendant-Appellant.

          Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar, Judge.

         The defendant challenges the district court's denial of his motion to suppress.

          Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Bower, J., and Blane, S.J.[*]

          BLANE, SENIOR JUDGE.

         Lowell Ewalt appeals from his conviction for possession of a controlled substance (marijuana). He challenges the district court's denial of his motion to suppress evidence obtained after the initiation of a routine traffic stop for speeding. Ewalt maintains the officer unconstitutionally extended the duration of the stop; he also argues he should have been told his Miranda rights[1] before the officer asked him questions pertaining to his use of marijuana.

         I. Background Facts and Procedures.

         On August 15, 2015, Trooper Jim Smith initiated a stop of a vehicle traveling nine miles per hour more than the posted speed limit. When the officer reached the driver's side window to speak to the driver-who he later learned was Ewalt- he noted that Ewalt was holding a freshly lit cigarette. According to his testimony, in the officer's experience, drivers sometimes light cigarettes once a stop has been initiated in order to mask the odor of alcohol or marijuana. Additionally, the officer later testified that when he reached the window, Ewalt's eyes were watery and bloodshot and Ewalt's hand shook when he reached for the registration. The officer noted that the vehicle was registered under a woman's name. While the car had Iowa license plates, Ewalt's driver's license had been issued by the state of Missouri. Ewalt told the officer that he was just leaving "our golf course," referencing the local course. The officer testified Ewalt avoided making eye contact with him while they spoke. According to the officer's testimony, based on all of the foregoing, he was then concerned both that Ewalt was driving while under the influence and that there was an issue with Ewalt driving the vehicle-the officer questioned whether Ewalt was able to obtain an Iowa driver's license and wondered if he may be barred from driving in the state.

         The officer asked Ewalt to come sit with him in his squad car; he told him he would need to sign something on the computer that was in the front seat of the squad car. Ewalt walked himself to the front, passenger seat of the squad car and got in. He was not under restraints, and the passenger-side door was not locked. During this time, Ewalt's passenger remained seated in the car Ewalt was driving.

         While Trooper Smith and Ewalt sat in the front seat of the squad car, the officer asked Ewalt if he had a criminal record. Ewalt responded that he had a marijuana conviction a couple years before and another one five years before that. The officer then asked Ewalt when he had last smoked marijuana; Ewalt reported it had been about one week.

         Trooper Smith expressed that his job was to ensure that Ewalt was not driving while under the influence; the officer then began asking Ewalt questions about his tolerance, including his age, how many years he had been smoking marijuana, how much marijuana he smokes at a time, and how often he smokes it. Ewalt answered the questions and informed the officer that he smokes marijuana to self-medicate for pain.

         Trooper Smith then began administering some field sobriety tests. Ewalt showed two clues in the horizontal gaze nystagmus test. Additionally, the officer checked Ewalt's tongue and noted some heat bumps, which the officer later testified is associated with smoking marijuana.[2] The officer indicated he had some reason to believe Ewalt may be under the influence and then asked Ewalt again when he had last smoked marijuana; Ewalt changed his answer, stating he had smoked marijuana the night before last. Trooper Smith asked Ewalt if there were drugs in the car, and Ewalt responded, "I don't think so." The officer pressed him, indicating he would view Ewalt's previous statements with less credibility if he learned there were drugs in the car when he spoke with the passenger. Ewalt then changed his answer, stating, "There might be some in there. We had a little canister." When asked where it would be located, Ewalt responded, "If it's in the car, I would say probably in one of our bags." Ewalt agreed that if there were drugs in the car, they were his and not the passenger's. Additionally, Ewalt agreed that if there were drugs in the car, the passenger would probably know where they were located.

         The officer then left Ewalt in the squad car while he spoke with the passenger. Based on the video from the officer's squad car, which was admitted into evidence, the officer began speaking with the passenger, who then opened the trunk of the vehicle from inside the passenger compartment. She exited the vehicle, got her purse out from the trunk, and then handed the officer her identification. Trooper Smith told the passenger Ewalt had admitted there were drugs in the vehicle and then asked her where they were located. She told him it was in her bag in the car but the drugs belonged to Ewalt. The officer then retrieved the marijuana[3] from the bag.

         Trooper Smith conducted a couple more field sobriety tests with Ewalt before ultimately placing him under arrest for possession of marijuana. Ewalt ...


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