from the Iowa District Court for Emmet County, Ann M. Gales,
District Associate Judge.
defendant appeals the denial of his motion to suppress.
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
a conviction for operating while intoxicated, first offense,
Clarence Blanchard appeals the district court's denial of
his motion to suppress. Blanchard argues there was neither a
reasonable articulable suspicion nor probable cause to
support the police officer's investigatory stop of his
the Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution prohibit
unreasonable searches and seizures by the government."
State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013).
"A traffic stop is unquestionably a seizure . . .
." Id. at 292. "Yet, this protection does
not prohibit police from temporarily detaining an individual
when they have reasonable grounds to believe criminal
activity is afoot." State v. DeWitt, 811 N.W.2d
460, 468 (Iowa 2012). Such stops are generally referred to as
Terry stops. See Terry v. Ohio, 392 U.S. 1,
20-27 (1968). The State bears the burden of proving by a
preponderance of the evidence that the requisite suspicion
existed to justify the Terry stop. See
Tyler, 830 N.W.2d at 293. If the State fails to carry
its burden, "all evidence obtained at the stop must be
suppressed." Id. We review the district
court's suppression ruling de novo. State v.
Watts, 801 N.W.2d 845, 850 (Iowa 2011).
off-duty deputy Thomas Bauler was putting gas in his car at
an area gas station in the early morning hours when he
noticed an SUV at the gas station that was playing very loud
music. Deputy Bauler approached the vehicle, showing his
police badge to a passenger in the backseat who had the
window rolled down; the driver was not in the vehicle at the
time Deputy Bauler approached. As he talked to the backseat
passenger, Deputy Bauler recognized the smell of marijuana
emanating from the vehicle. According to his testimony,
because he was off-duty and not in his uniform, driving his
squad car, or carrying his weapon, he did not take any steps
to prevent the vehicle from leaving after the driver
returned. However, as the vehicle left the gas station, at
2:55 a.m., Deputy Bauler called the local dispatch and
reported his observations as well as the license plate number
and description of the vehicle. Deputy Bauler then began
driving toward his home. On the way, he drove by Detective
Nathaniel Dunlavey, who was on duty and was looking for the
SUV. Deputy Bauler flagged Detective Dunlavey down and shared
the information he had previously reported to dispatch. Then,
at 3:16 a.m., based solely on the report from Officer Bauler,
Detective Dunlavey initiated a stop of the SUV. Once he made
contact with the driver-Blanchard- Detective Dunlavey
suspected Blanchard was driving while intoxicated. Later
testing established that Blanchard's blood alcohol
content was .194.
appeal, Blanchard maintains there was not reasonable
suspicion to stop his vehicle because "the alleged odor
of marijuana coming from occupants in a vehicle over twenty
minutes prior to the stop does not provide a reasonable basis
that criminal activity was afoot at the time of the
stop." He also provides a possible non-criminal
explanation for the smell of marijuana coming from the
vehicle, claiming one of the passengers could have stood next
to a person who was smoking marijuana before entering the
"reasonable cause may exist to investigate conduct which
is subject to a legitimate explanation and turns out to be
wholly lawful." State v. Richardson, 501 N.W.2d
495, 497 (Iowa 1993). Moreover,
[r]easonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable
suspicion can be established with information that is
different in quantity or content than that required to
establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). While an
"unverified tip from [a] known informant might not [be]
reliable enough to establish probable cause, [the Supreme
Court] nevertheless found it sufficiently reliable to justify
a Terry stop." Id. (citing Adams
v. Williams, 407 U.S. 143, 147 (1972)).
an off-duty officer, who is trained to detect the odor of
marijuana, recognized the smell of marijuana emanating from
the vehicle when he spoke to one of the passengers through an
open window. Our case law establishes that this fact provides
more than just a hunch of criminal wrongdoing. See
Watts, 801 N.W.2d at 854 ("Our court has . . . held
that a trained officer's detection of a sufficiently
distinctive odor, by itself or when accompanied by other
facts, may establish probable cause."); see also
State v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (holding
"the patrolman ...