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State v. Fogg

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KARI LEE FOGG, Defendant-Appellant.

          Appeal from the Iowa District Court for Boone County, Paul G. Crawford (motion to suppress) and Stephen A. Owen (trial), District Associate Judges.

         Kari Fogg appeals her conviction of operating while intoxicated.

          Mark C. Smith, State Appellate Defender (until withdrawal), and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         Kari Fogg appeals her conviction of operating while intoxicated (OWI), first offense. She contends the district court erred in denying her motion to suppress evidence on the basis of an allegedly unreasonable seizure. She also argues her counsel rendered ineffective assistance in failing to object to alleged prosecutorial error in the State's closing argument.

         I. Background Facts and Proceedings

         Shortly before 10:00 p.m. on Tuesday, October 10, 2017, Officer Michael Frazier of the Boone Police Department was on routine patrol when he observed a silver Hyundai "driving really slow" at "ten miles per hour" through a residential area. Frazier circled the block and observed the vehicle's movement for another three or four minutes. The vehicle then turned north into a narrow alley located between the main streets. According to Frazier's testimony, the alley is not used often. The alley is abutted by houses, outbuildings, and driveways. Frazier paralleled the vehicle on one of the side streets and then waited for the vehicle to exit the alley at the end of the block. After waiting at the end of the block for roughly one minute, Frazier noticed the car had stopped in the middle of the alley and parked. When asked during the suppression hearing whether he was suspicious a crime was being committed, Frazier testified:

I wasn't sure. A lot of burglaries happen on that side of town, so I wasn't sure if someone was getting dropped off to do vehicle burglaries or garage burglaries in the area. It was just all around suspicious. Just wanted to make sure they were okay.
I really don't know. I mean it was just odd that someone would be parked right there at that time of night.

         On cross-examination, Frazier conceded he was not under any belief that a crime had been committed. He elaborated:

I thought it was a possibility something was going on or it was somebody that was broken down in the alley. I didn't know.
I was suspicious of her driving behavior before and then where she was parked at at the time or where ...

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