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State v. Ubben

Court of Appeals of Iowa

July 24, 2019

STATE OF IOWA, Plaintiff-Appellee,
JAMIE MICHAEL UBBEN, Defendant-Appellant.

          Appeal from the Iowa District Court for Grundy County, Jeffrey L. Harris, District Associate Judge (motion to suppress) and Bradley J. Harris, Judge (trial).

         The defendant appeals from his convictions for carrying weapons and operating while intoxicated.

          R. A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

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


         Jamie Michael Ubben appeals from his convictions for operating while intoxicated (OWI) and carrying weapons. He contends the district court erred in not suppressing the gun found during an allegedly unconstitutional search of his vehicle. He also argues the arresting officer interfered with his statutory right to make a phone call under Iowa Code section 804.20 (2016) and his refusal to take a breath test should have been suppressed.

         We find the gun was admissible as an inevitable discovery made during the lawful inventory search of Ubben's truck. We also find no violation of Ubben's rights under section 804.20 and, in addition, any alleged violation was harmless.


         At dusk on a cold Christmas Eve, December 24, 2016, Grundy County Sheriff's Deputies Kirk Dolleslager and Josh Ritchey were dispatched to a snow-covered, rural county road in response to several reports. They found a truck parked "dead center" in the middle of the road, still running, and blasting loud music. The driver was "passed out" in the driver's seat with his feet on the dash and a hat pulled down over his face. Despite the loud music, it took close to twelve minutes for the deputies to rouse the driver, Ubben.[1] In plain view from the windows of the truck, the deputies could see packs of Busch Light beer, a gun holster, and a magazine clip in a cup holder.

         Ubben eventually was awakened. The deputies could smell alcohol from outside the truck and on Ubben's person. The deputies patted him down and placed him in a patrol car. Ubben had slurred speech, bloodshot and watery eyes, poor balance, and a poor grasp of the situation: he said he did not know where he was, where he came from, or where he had been going. He failed a horizontal gaze nystagmus (HGN) test. He was unable to follow directions in reciting the alphabet or counting numbers.

         Ubben told the deputies he had a dead mountain lion in the back of his truck but, despite deputies seeing beer, the holster, and magazine clip, he denied having any alcohol or weapons. He indicated he had a concealed carry permit. Eventually, he told the deputies he had been hunting mountain lions in Utah. One of the deputies administered a preliminary breath test and found he had a blood alcohol level two times the legal limit. Leaving Ubben in the patrol car, the two deputies held a brief conversation, opened the doors of the truck, and looked inside. They found a handgun lying on the passenger's seat next to the passenger seat armrest. It had no cover or case.

         They returned to the patrol car and informed Ubben he was under arrest for OWI and for carrying weapons. Deputy Dolleslager helped Ubben buckle his seatbelt and transported him to the Grundy County jail while Deputy Ritchey stayed behind to inventory and impound the truck. Ubben was charged with OWI and carrying weapons.[2]

         At the suppression hearing, Deputy Ritchey testified it is the policy of their law enforcement agency that vehicles are inventoried and towed after an arrest unless circumstances exist where the vehicle cannot be towed or it is located on private property. He also testified because the truck was "dead center" "in the middle of the traveled portion of the gravel road," it had to be towed. He testified he and Deputy Dolleslager discussed the situation and he understood that Ubben was under arrest. He stated deputies did not open the doors until he began his inventory search. He then called for a tow truck and began making his "tow report." Dashboard camera video shows Ritchey readied his camera shortly after Deputy Dolleslager left with Ubben and proceeded to photograph the exterior and interior of the truck. The tow truck arrived about ten minutes later.

         Ubben moved to suppress the gun, alleging the search of his vehicle violated the Iowa and Federal Constitutions. He also asserted he was denied his statutory right to make phone calls under Iowa Code section 804.20 and his refusal to take a test should have been suppressed. After a hearing, the district court overruled the motion to suppress. The court found "the peace officers were allowed to impound defendant's vehicle under the facts of this case. The inventory of defendant's vehicle was reasonable." In addition, the court found, "The State's theory of inevitable discovery would also support the admissibility of the weapon as it was seized from defendant's vehicle following the impound inventory." (Emphasis added.) On the section 804.20 claim, the court found the officers "did nothing to gut or eviscerate defendant's statutory rights . . . . [A]lthough the defendant clearly indicated an interest in calling an attorney, he inexplicably elected not to do so even though Deputy Dolleslager repeatedly informed the defendant of his right to call an attorney" or anyone else.

         Before trial, Ubben raised his motion to suppress verbally again, and the court reserved its ruling for the trial. Following a trial on the minutes of evidence, the district court found Ubben guilty of operating while intoxicated and carrying weapons. There, the court found, in addition to the inevitable discovery through the inventory search, the vehicle search was justified by the vehicle exception to the warrant requirement and ...

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