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State v. Fogg

Supreme Court of Iowa

December 20, 2019

STATE OF IOWA, Appellee,
v.
KARI LEE FOGG, Appellant.

          On review from the Iowa Court of Appeals.

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

         A 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.

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

          Thomas J. Miller, Attorney General, Genevieve Reinkoester, Assistant Attorney General, Dan Kolacia, County Attorney, and Matthew Speers, Assistant County Attorney, for appellee.

          MANSFIELD, Justice.

         A 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 intoxicated.

         The 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 appeals.

         I. Facts and Procedural History.

         At 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 alley.

         Officer 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."

         Officer 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.

         Fogg 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.

         Officer 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.

         The 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.

         The 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 vehicle anyway.

         Following 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.

         We 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 review.[1]

         II. Standard of Review.

         As we 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)).

         III. Legal Analysis.

         Fogg 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 constitutional analysis.

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).

         The 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).

         Hence, 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.

         The 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 way.
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.

         In 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.

         In 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.

         We concluded as follows: "Simply put, neither of the officers displayed coercive or authoritative behavior to transform this encounter into a seizure for Fourth Amendment purposes." Id.

         The 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.

         Under 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 objectively coercive.

         Fogg's 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.

         But the 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.

         At oral 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 her.

         Both 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.

         Additionally, 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 Fogg's vehicle.

         This 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 curiam).

         It is 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 ...


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