from the Iowa District Court for Boone County, Paul G.
Crawford (motion to suppress) and Stephen A. Owen (trial),
District Associate Judges.
Fogg appeals her conviction of operating while intoxicated.
C. Smith, State Appellate Defender (until withdrawal), and
Melinda J. Nye, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Mullins, JJ.
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
Background Facts and Proceedings
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
I really don't know. I mean it was just odd that someone
would be parked right there at that time of night.
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
I was suspicious of her driving behavior before and then
where she was parked at at the time or where ...