review from the Iowa Court of Appeals.
from the Iowa District Court for Boone County, Paul G.
Crawford (motion to suppress) and Stephen A. Owen (trial),
District Associate Judges.
defendant appeals her conviction for operating while
intoxicated first offense, contending that her motion to
suppress should have been granted. DECISION OF COURT OF
APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.
C. Smith, State Appellate Defender (until withdrawal), and
Melinda J. Nye, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Genevieve Reinkoester, Assistant
Attorney General, Dan Kolacia, County Attorney, and Matthew
Speers, Assistant County Attorney, for appellee.
police officer saw a vehicle driving suspiciously for several
minutes in a residential neighborhood at night at a
snail's pace of ten miles per hour. After the vehicle
entered a one-lane alley that ran between two streets and
then did not emerge from the alley, the officer approached
the stopped vehicle from the front without activating
flashers. He stopped his own patrol car at least twenty feet
away, turned the lights down to low beam, got out of his
patrol car, and walked up to the driver to engage in a
conversation. This resulted in the officer learning that the
driver was under the influence of alcohol. Eventually it
resulted in the driver's conviction for driving while
issue we must decide on appeal is whether the driver was
seized for purposes of the Fourth Amendment to the United
States Constitution or article I, section 8 of the Iowa
Constitution when the officer approached her on foot that
evening. We agree with the district court and the court of
appeals that she was not and accordingly affirm the judgment
of the district court and the decision of the court of
Facts and Procedural History.
about 9:50 p.m. on October 10, 2017, Officer Michael Frazier
of the Boone Police Department was patrolling in residential
neighborhoods of the city east of the hospital area. He
noticed that a silver Hyundai was going very slowly-about ten
miles per hour in a twenty-five-mile-per-hour zone. After
about three or four minutes, he saw the Hyundai proceed north
from Second Street into an alley that paralleled Clinton and
Jackson Streets. The alley is wide enough for one lane of
traffic and has various driveways that access it. Officer
Frazier proceeded up Clinton Street to Third Street and
waited for the vehicle to exit the alley. When the vehicle
did not come out of the alley, Officer Frazier turned east on
Third Street where he saw the Hyundai "had stopped in
the mid-block in the alley and just kind of parked
there." He "saw the vehicle was still sitting there
not knowing if it was occupied or not." Officer Frazier
decided to turn south into the alley and pull in front of the
Hyundai "to see what was going on." The lights of
the Hyundai were still on, but Officer Frazier could not tell
whether anyone was in the vehicle until he pulled into the
Frazier did not activate his flashers. Instead, he parked his
patrol car at least twenty feet from the Hyundai, left his
own low beams on, got out, and walked up to the Hyundai. At
that point, the driver of the Hyundai, Kari Fogg, opened her
door. Officer Frazier asked "whether everything was
okay, what was going on." Fogg responded that "she
lived in the area and was checking to see if the alley was
crooked or something to that effect, that she had to report
to the city."
Frazier smelled a strong odor of an alcoholic beverage coming
from the vehicle. He also noticed red and watery eyes and
some slightly slurred speech. He asked Fogg how much she had
had to drink that evening, and she initially stated
"nothing." Soon thereafter she changed her answer
and said she had had two glasses of wine. Fogg was asked to
perform some field sobriety tests. She failed them. Fogg
refused a preliminary breath test and was arrested for
operating while intoxicated (OWI). At the jail, Fogg refused
a chemical test.
was charged with OWI, first offense, in violation of Iowa
Code section 321J.2. See Iowa Code §
321J.2(1)(a), (2)(a) (2017). Fogg moved to
suppress all evidence derived from Officer Frazier's
encounter with her in the alley, alleging that she was seized
without reasonable suspicion in violation of both the Fourth
Amendment to the United States Constitution and article I,
section 8 of the Iowa Constitution. An evidentiary hearing
was held. Officer Frazier testified, and an overhead
photograph of the alley was introduced into evidence. On the
photograph, Officer Frazier marked where the Hyundai and his
patrol car were parked.
Frazier testified that the vehicle had been driving
suspiciously and that it was suspicious for it to be parked
in an alley. During the summer, Officer Frazier had taken
seventeen burglary reports within the city himself and
probably six or so were from that area.
alley is a public alley. Traffic is permitted in either
direction, but it is only wide enough for one vehicle to
proceed at a time without driving into someone's yard.
Once Officer Frazier pulled in with his patrol car and
stopped a couple of car lengths in front of Fogg's
Hyundai, for Fogg to leave she would have had to back up
about 125 feet to exit the alley or turn around in a driveway
that fronted on the alley. Fogg's vehicle was parked near
one of those driveways that led into a garage. It also turned
out that she lived only about a block from where she had
stopped the Hyundai in the alley.
district court denied Fogg's motion to suppress. While
acknowledging that "[i]t's a close call," the
court found that Fogg had not been seized at the time Officer
Frazier stopped in the alley and walked up to her vehicle.
The court also alternatively found that Officer Frazier had
reasonable suspicion that criminal activity may have been
afoot and would have been justified in stopping Fogg's
a jury trial, Fogg was convicted of OWI, first offense and
sentenced to two days in jail plus a fine and surcharges.
See Iowa Code § 321J.2(3). Fogg appealed,
arguing that her motion to suppress should have been granted
and that her counsel had been ineffective in failing to
object to certain statements made by the prosecutor during
rebuttal closing argument.
transferred the case to the court of appeals. That court
affirmed the conviction. Based on a de novo review of the
record and consideration of the totality of the
circumstances, the court of appeals concluded that "Fogg
was not subjected to a seizure in the constitutional
sense." The court also determined that Fogg's trial
counsel had not been ineffective in failing to object to the
prosecutor's statements during rebuttal closing argument.
We granted Fogg's application for further
Standard of Review.
have said recently,
"When a defendant challenges a district court's
denial of a motion to suppress based upon the deprivation of
a state or federal constitutional right, our standard of
review is de novo." We examine the whole record and
"make 'an independent evaluation of the totality of
the circumstances.'" "Each case must be
evaluated in light of its unique circumstances."
State v. Coffman, 914 N.W.2d 240, 244 (Iowa 2018)
(first quoting State v. Storm, 898 N.W.2d 140, 144
(Iowa 2017); and then quoting State v. Kurth, 813
N.W.2d 270, 272 (Iowa 2012)).
argues that she was seized on October 10, 2017, in violation
of her rights under the Fourth Amendment and article I,
section 8. However, she does not argue for a separate Iowa
When a party does not suggest a framework for analyzing the
Iowa Constitution that is different from the framework
utilized under the United States Constitution, we apply the
general federal framework. However, we reserve the right to
apply the federal framework in a different manner.
In re Det. of Anderson, 895 N.W.2d 131, 139 (Iowa
2017) (citation omitted).
threshold question under both constitutions is often whether
there has been a seizure: "In order for the Fourth
Amendment [or article I, section 8] to apply in this case,
there must first be a 'seizure.'" State v.
Wilkes, 756 N.W.2d 838, 842 (Iowa 2008).
we must determine whether Officer Frazier "seized"
Fogg prior to reasonably suspecting Fogg of operating a motor
vehicle while intoxicated. If no seizure occurred, a motion
to suppress on that ground is without merit.
defendant has the burden of proof as to whether a seizure
occurred. See 6 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment §
11.2(b), at 58-59 (5th ed. 2012) [hereinafter LaFave,
Search and Seizure] ("The defendant . . . has
the burden of proof as to . . . whether a seizure
occurred."). We explored the question of whether a
seizure had occurred extensively in Wilkes, 756
N.W.2d at 841-45. The facts of Wilkes are somewhat
similar to those here-a vehicle was parked at night, and a
police officer decided to investigate, pulling his patrol car
near to the vehicle, getting out, and walking up to the
driver side of the vehicle.
Atlantic Police Officer Paul Wood and a reserve officer were
riding in a patrol car on routine duty the night of January
12, 2007. Around midnight, Wood spotted a white truck with
its headlights on and its engine running parked in
Schildberg's Quarry. Although the record does not reveal
the exact temperature, Wood testified that it was
"pretty cold outside."
Wood pulled the patrol car into the quarry "to make sure
everything was okay with the driver." While approaching
the vehicle, Wood did not activate his emergency lights or
siren. He pulled his patrol car to a distance of about ten or
fifteen feet from the truck. Although the quarry had only one
entrance, the patrol car did not block the entrance in any
After pulling up behind the truck, Wood and the reserve
officer exited the patrol car and approached the vehicle.
Wood observed that the truck was occupied by two people. Wood
approached on the driver's side of the truck and the
reserve officer walked toward the truck on the passenger side
but stayed behind the vehicle. When Wood arrived at the
driver's window, he "basically asked what was going
on" and "made sure everything was okay."
Through the opened driver's window, Wood smelled the
strong odor of an alcoholic beverage coming from the driver.
Id. at 840-41.
Wilkes, we reviewed both our own precedents and
those of the United States Supreme Court. Id. at
842-44. We pointed out that whether a seizure occurred is
determined by "the totality of the circumstances."
Id. at 842. We quoted the Supreme Court for the
proposition that a seizure does not occur if "a
reasonable person would feel free 'to disregard the
police and go about his business.'" Id. at
843 (quoting Florida v. Bostick, 501 U.S. 429, 434,
111 S.Ct. 2382, 2386 (1991)). Yet, we indicated that
"objective indices of police coercion must be present to
convert an encounter between police and citizens into a
seizure." Id. at 843. We added that "[t]he
element of coercion is not established by ordinary indicia of
police authority." Id.
Wilkes we discussed State v. Harlan, a case
where we had held that an officer who parked his patrol car
behind the defendant's stopped car, walked up to the
defendant's car, and shined a flashlight into the car did
not "seize" the defendant. See Wilkes, 756
N.W.2d at 843-44 (discussing Harlan, 301 N.W.2d 717,
719-20 (Iowa 1981)). We then commented on the similarity
between Wilkes and Harlan. Id. at
844. We found that no seizure occurred even though the
officer parked behind the defendant's vehicle, shined
headlights in the defendant's vehicle, and walked up to
the defendant's vehicle in uniform. Id. We
emphasized that "the use of ordinary headlights at night
is simply not coercive in the same manner as the activation
of emergency lights which invoke police authority and imply a
police command to stop and remain." Id. We also
found that the defendant's ability "to drive away
was not substantially impaired," because "there
were at least two ways for him to turn his truck around and
leave the quarry, had he chosen to do so." Id.
concluded as follows: "Simply put, neither of the
officers displayed coercive or authoritative behavior to
transform this encounter into a seizure for Fourth Amendment
overview that we provided in Wilkes is sound law,
and it remains the law today. We recognize that one of the
norms of society we have grown up with is that we should
cooperate with law enforcement. Fogg may have been operating
under that norm. However, for a seizure to occur,
there must be more-"objective indices of police
coercion," "[t]he element of coercion," or
"coercive or authoritative behavior." Id.
at 843, 844. One way of looking at the matter is whether the
officer was simply engaging in activity that any
private person would have a right to engage in.
See id. at 844; Harlan, 301 N.W.2d at 720.
the circumstances of this case, we conclude there was no
seizure. Officer Frazier never activated the emergency lights
on his vehicle. He parked at least twenty feet away from
Fogg's parked vehicle and approached her on foot. He did
not shine a light into or knock on Fogg's vehicle. In
fact, Fogg opened her car door before Officer Frazier
arrived. Officer Frazier engaged in conversation to ask if
everything was ok and what was going on. None of this is
appeal boils down to a simple point. The alley was only wide
enough for one car at a time, and by driving down it from the
north, Officer Frazier created a situation where she would
have had to leave by backing up about 125 feet to the south.
alley was a public alley that was not posted for a single
direction of traffic. Officer Frazier had as much right to
pull in from the north and park as Fogg did to pull in from
the south and park. Officer Frazier was not doing something a
private person could not have done.
argument, Fogg's counsel suggested that in order to have
a consensual encounter with Fogg rather than a seizure,
Officer Frazier could have chosen one of two alternatives.
First, he could have parked on Third Street and then walked
down the alley until he reached Fogg's vehicle. Second,
he could have driven all the way around the block and then
approached Fogg's vehicle from behind and parked behind
alternatives would have taken more time and would have
involved a less direct and convenient route to Fogg's
vehicle. We do not believe the Fourth Amendment or article I,
section 8 require Officer Frazier to undergo this extra time
and inconvenience. Moreover, the first alternative would have
likely increased the personal risk to Officer Frazier by
separating him from his vehicle. The second alternative could
have made Fogg feel more apprehensive: it was 9:50 p.m., and
she might have been unable to tell that the vehicle
approaching her from behind was a patrol car.
on our de novo review of the record, we conclude that Fogg
would not have needed to back up 125 feet to leave. The
aerial photograph of the alley shows at least three spots
between Fogg's current location and Second Street where
Fogg could have turned around. Officer Frazier did initially
testify that for Fogg to leave, she would have to back up the
alley all the way to Second Street. However, at the end of
cross-examination, Fogg's counsel asked him to review the
aerial photograph again. At this point Officer Frazier
confirmed the presence of two garages (each of which is shown
on the photograph as having a driveway) and one driveway
without garage. All of these opened onto the alley and were
accessible to Fogg's vehicle as places where she could
have turned around her vehicle. One was very near to
was not a situation where the police officer
"activate[d] his emergency lights and block[ed] in [the
defendant's] parked vehicle." Kurth, 813
N.W.2d at 278. Nor was it a situation where the officer
parked his vehicle in the middle of the defendant's
driveway, blocking in the defendant's vehicle; left the
emergency lights on; and insisted that the defendant return
from his front porch to the driveway and talk to him. See
State v. White, 887 N.W.2d 172, 176-77 (Iowa 2016) (per
true that Fogg could not have driven forward. However, she
could have driven backward either with or without turning
around. She was not "boxed in." 4 LaFave,
Search and Seizure § 9.4(a) n.122, at 596- 97.
"[T]here was an avenue by which [Fogg] could have
actually left." County of Grant v. Vogt, 850
N.W.2d 253, 265, 268 (Wis. 2014) (finding no seizure when the
deputy pulled up behind a vehicle in a parking lot, got out,
and knocked on the window of the defendant's car because
the defendant could have "pulled forward and turned
around"). "[Fogg] could have backed up and driven
away from the encounter . . . ." State v.
Randle, 276 P.3d 732, 732, 735, 739 (Idaho Ct. App.
2012) (upholding the denial of a motion to suppress when an
officer parked two car lengths behind the defendant's car
which was abutting a grassy knoll, approached the vehicle,
and knocked on the driver's side window); see also
Erickson v. Comm'r of Pub. Safety, 415 N.W.2d 698,
701 (Minn.Ct.App. 1987) (upholding the denial ...