State of Iowa v. Kari Lee Fogg ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0483
Filed December 20, 2019
STATE OF IOWA,
Appellee,
vs.
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.
2
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
3
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
4
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.
5
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.
1When we grant further review, we may exercise our discretion to let the court of
appeals decision stand as the final decision on particular issues. See State v. Henderson,
908 N.W.2d 868, 875 (Iowa 2018). Here, Fogg sought further review only on the issue of
whether she had been seized when Officer Frazier approached her on October 10, 2017.
We exercise our discretion to let the court of appeals decision stand as the final decision
on whether her trial counsel was ineffective in failing to object to statements made by the
prosecutor during rebuttal closing argument.
6
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.
7
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
8
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.
9
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
10
(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 of a motion to suppress when “the officers parked
their vehicles in front of the entryway and by appellant’s truck in order to
11
be as close as possible to the entrance, and not to intentionally block and
seize appellant”).
As LaFave has explained, after recognizing that there are “moral and
instinctive pressures to cooperate” with the police,
[T]he confrontation is a seizure only if the officer adds to those
inherent pressures by engaging in conduct significantly
beyond that accepted in social intercourse. The critical factor
is whether the policeman, even if making inquiries a private
citizen would not, has otherwise conducted himself in a
manner which would be perceived as a nonoffensive contact if
it occurred between two ordinary citizens.
4 LaFave, Search and Seizure § 9.4(a), at 581–82 (footnotes omitted). We
agree with the courts below that no seizure occurred under the Fourth
Amendment or article I, section 8 until after Officer Frazier observed the
signs of intoxication on Fogg.
IV. Conclusion.
For the foregoing reasons, we affirm Fogg’s conviction and sentence.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Appel, J., and Wiggins, C.J., who dissent.
12
#18–0483, State v. Fogg
APPEL, Justice (dissenting).
In this case, we consider whether an automobile driver was seized
when a uniformed officer approached the vehicle after blocking the exit to
a residential alleyway with his patrol car. If the driver was, in fact, seized,
we then consider whether the warrantless seizure was supported by
reasonable suspicion of criminal activity or allowable as a community
caretaking function.
The defendant filed a motion to suppress evidence of operating while
intoxicated (OWI) obtained by police as a result of the incident. The district
court, while finding the question of a seizure “a close call,” held that the
police had reasonable suspicion that criminal activity might be afoot in
light of recent residential burglaries in the area.
The majority today upholds the district court in finding that no
seizure occurred under the Fourth Amendment of the United States
Constitution or article I, section 8 of the Iowa Constitution. For the
reasons expressed below, I strongly disagree and instead would vacate the
court of appeals ruling, reverse the district court’s order, and remand the
case to the district court.
I. Factual and Procedural Background.
Shortly before 10:00 p.m. on the evening of October 10, 2017, Boone
Police Officer Michael Frazier was patrolling the east side of the city. The
officer saw a silver Hyundai driving slowly through a residential
neighborhood at a speed the officer estimated was ten miles per hour. The
vehicle turned into a narrow alleyway and stopped midway in the alley
with its lights on.
Officer Frazier decided to “see what was going on.” The officer circled
back, entered the alley from the opposite direction, and stopped his patrol
13
vehicle, with the headlights on, in front of the Hyundai. Then, Officer
Frazier initiated procedures to determine the ownership of the vehicle by
running the license plate number as he alighted and approached the
vehicle.
As Officer Frazier approached, Kari Fogg opened her car door and
exited the vehicle. She told the officer she was checking to see if the alley
was crooked. The officer stated he smelled alcohol on her breath and
commenced an OWI inquiry. Subsequently, Fogg admitted to consuming
two glasses of wine and some prescription medication prior to driving.
Officer Frazier asked Fogg to perform a series of roadside sobriety
tests. Frazier detected six clues on Fogg’s horizontal-gaze nystagmus test
and also noted the presence of vertical-gaze nystagmus. Fogg attempted
to walk and turn but did not complete the test, indicating concern that she
would fall. She declined to perform the one-legged stand. Frazier
requested a preliminary breath test, which Fogg declined.
At that point, Officer Frazier arrested Fogg and took her to the police
station. At the station, Frazier gave Fogg the opportunity to call an
attorney, but Fogg was unable to reach one. She refused to consent to the
blood test.
Fogg was subsequently charged with OWI, first offense, under Iowa
Code section 321J.2 (2017). Fogg filed a motion to suppress all evidence
because Frazier had no probable cause or reasonable suspicion to stop her
and the warrantless stop violated the search and seizure provisions of the
Iowa Constitution, article I, section 8 and the Fourth Amendment of the
United States Constitution.
The State resisted the motion to suppress. The State asserted the
encounter between Officer Frazier and Fogg was consensual and not a
seizure, thereby avoiding the warrant requirements under the Iowa and
14
Federal Constitutions. In the alternative, the State argued that if there
was a seizure, the warrantless stop was supported by reasonable suspicion
that Fogg was driving under the influence or the conduct was justified
under the community caretaking exception to the warrant requirement.
The resistance did not suggest that Officer Frazier had reasonable
suspicion about a burglary in progress.
At the suppression hearing, however, Frazier was asked on direct
examination if he was suspicious that a particular crime was being
committed. He stated,
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.
Counsel sought a clearer explanation of Frazier’s reasoning during cross-
examination. Frazier testified, “At that time I really didn’t know until I
made contact. I didn’t know what was going on.” Pressed further, Frazier
stated,
I had no idea, sir. I thought it was a possibility something was
going on or it was somebody who was broken down in the
alley. I didn’t know.
....
. . . A. I was suspicious of her driving behavior before
then where she was parked at at the time or where she had
stopped at.
The district court denied the motion to suppress. According to the
district court, the question of whether a seizure occurred “was a close call.”
But even if there was a seizure, the district court concluded that Officer
Frazier had reasonable suspicion that a burglary was in progress.
15
The case proceeded to trial. At trial, two witnesses testified: Fogg
and Frazier. Officer Frazier’s interactions with Fogg were captured on
video and presented to the jury.
Officer Frazier was asked again about the nature of his activity that
night. Frazier confirmed that he was patrolling one of the neighborhoods
“on the east side [of Boone].” In approaching the car, Frazier stated,
I wasn’t sure what this person was doing. I didn’t know who
–- I hadn’t run the license plate. I didn’t know who it was. A
male or female, young or old, if they lived in the neighborhood.
I was concerned with burglaries over the summertime, that
someone was maybe cruising the alleys casing some garages.
I just -– I didn’t know what was going on. The behavior was
strange.
The jury convicted Fogg. She now appeals. For the reasons
expressed below, the court should have reversed.
II. Standard of Review.
I conclude, along with the majority, that a challenge to a motion to
suppress on state or federal constitutional grounds is reviewed de novo.
State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). Indeed, the appellate
court undertakes “an independent evaluation of the totality of the
circumstances as shown by the entire record.” State v. Turner, 630 N.W.2d
601, 606 (Iowa 2001) (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa
1993)). However, the allocation of burden in this case is worthy of
emphasis: The state bears the burden of showing by a preponderance of
the evidence that an officer’s warrantless seizure was constitutional. State
v. Tague, 676 N.W.2d 197, 201 (Iowa 2004).
III. Discussion.
A. Introduction. In order to resolve the issues in this case, we
must answer a series of questions, the first being whether Fogg was
subject to a seizure under the Iowa or Federal Constitution. If she was
16
not, there is no basis to suppress the evidence offered at trial that resulted
in her conviction.
The State claimed in the district court that Officer Frazier had
reasonable suspicion to believe that criminal activity was afoot and thus a
warrant was not required. Alternatively, the State argued that the seizure
was supported by the community caretaking exception to the warrant
requirement. In its brief on appeal, however, the State does not defend the
actions of Frazier based on these exceptions to the warrant requirement.
The State’s briefing before this court relies solely on whether there was a
seizure in this case.
Fogg also claims that her conviction should be reversed because of
prosecutorial misconduct arising from what she claims were improper
arguments made to the jury by the prosecutor during rebuttal. The State
contends that even if the prosecutor’s arguments were impermissible, Fogg
cannot show she was prejudiced by them.
B. Was There a Seizure?
1. Introduction.
No right is held more sacred, or is more carefully guarded by
the common law, than the right of every individual to the
possession and control of his own person, free from all
restraint or interference of others, unless by clear authority of
law.
Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891).
The “inestimable right of personal security belongs as much to citizens on
the streets of our cities as to the homeowner closeted in his study to
dispose of his secret affairs.” Terry v. Ohio, 392 U.S. 1, 8–9, 88 S. Ct. 1868,
1873 (1968).
The warrant requirement is designed to provide broad protection by
“safeguard[ing] the privacy and security of individuals against arbitrary
17
intrusion by government officials.” State v. Crawford, 659 N.W.2d 537,
541 (Iowa 2003) (quoting State v. Brecunier, 564 N.W.2d 365, 367 (Iowa
1997)). The warrant requirement includes not only particularity but a
requirement of antecedent justification central to search and seizure law.
State v. Short, 851 N.W.2d 474, 502 (Iowa 2014). Indeed, as Justice
Jackson stated long ago,
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists
in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime.
Johnson v. United States, 333 U.S. 10, 13–14, 68 S. Ct. 367, 369 (1948).
Here, it is undisputed that Officer Frazier did not have a warrant to
search or seize Fogg. Warrantless seizures are per se unreasonable unless
an exception to the warrant requirement exists. State v. Hoskins, 711
N.W.2d 720, 725–26 (Iowa 2006). The question here is whether a
warrantless seizure occurred.
2. Positions of the parties. Fogg maintains that she was seized
because no reasonable person, under the circumstances, would have felt
free to leave the alley. Fogg points out that Officer Frazier blocked her
egress from the alley with his patrol car. She points to testimony from
Frazier that she could not have proceeded down the one-lane alley without
driving over residential lawns. The only other option, Fogg contends,
would have been driving in reverse, in the dark, down the narrow alley for
about 125 feet while the headlights from the officer’s car were shining in
her face. Under these circumstances, her ability to drive away was
substantially impaired, a significant factor in the determination of whether
18
a seizure has occurred under State v. Wilkes, 756 N.W.2d 838, 843–44
(Iowa 2008).
The State agrees with Fogg that the test of whether a seizure occurs
is whether a reasonable person would feel free to leave and that the
question is determined based on the totality of the circumstances. Id. at
842; State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004). According to the
State, however, the facts and circumstances of the interaction between
Fogg and Frazier show not a seizure but a consensual encounter. See
United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 2110 (2002)
(stating absent coercive means, “[i]f a reasonable person would feel free to
terminate the encounter, then he or she has not been seized”).
The State emphasizes that ordinary indicia of authority—such as a
badge, the fact that an officer is in uniform, or the fact that an officer is
visibly armed—has little weight in the analysis. See Reinders, 690 N.W.2d
at 82 (“Police questioning by itself, however, is generally not a seizure.”);
State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997) (“A seizure occurs when
an officer by means of physical force or show of authority in some way
restrains the liberty of a citizen.”); cf. State v. White, 887 N.W.2d 172, 176–
77 (Iowa 2016) (per curiam) (finding a seizure occurred when a uniformed
officer, displaying both gun and badge, blocked defendant’s garage and
insisted defendant speak with him). The State emphasizes that Officer
Frazier did not activate his emergency lights to signal the defendant to pull
over. See State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981) (“The use of
sirens, flashing lights or other signals to pull a moving vehicle to the side
of the road might also constitute a show of authority that is a seizure.”).
The State asserts that the defendant’s car was already parked and that
Officer Frazier merely parked twenty feet away, then approached the
defendant’s vehicle, but did not issue any commands. The State
19
additionally reasons that Fogg could have exited the narrow alleyway by
either driving in reverse or using a private driveway to turn her car around
and leave.
3. United States Supreme Court precedent. Under the United States
Constitution, a seizure occurs if “the police conduct would ‘have
communicated to a reasonable person that he was not at liberty to ignore
the police presence and go about his business.’ ” Florida v. Bostick, 501
U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991) (quoting Michigan v.
Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977 (1988)); see also
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877
(1980) (plurality) (finding the test for seizure is whether “a reasonable
person would have believed that he was not free to leave”). Fogg does not
argue for a different standard under the Iowa Constitution.
Under the Bostick–Mendenhall test, the determination of whether a
reasonable person would feel free to leave is “an independent evaluation
[based on] the totality of the circumstances as shown by the entire record.”
State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (alteration in original)
(quoting State v. Krogman, 804 N.W.2d 518, 522 (Iowa 2011)). The “free
to leave” Bostick–Mendenhall test is not dependent on the subjective state
of mind of the individual approached by police but is an objective standard
based on that of a reasonable person. See Chesternut, 486 U.S. at 573–
74, 108 S. Ct. at 1979–80.
The Bostick–Mendenhall standard has been applied in countless
search and seizure cases in state and federal courts. Disputes in the
caselaw are generally about application of the legal standard to the
circumstances presented in a given case. See County of Grant v. Vogt, 850
N.W.2d 253, 270 (Wis. 2014) (Ziegler, J., concurring). Many courts
applying the Bostick–Mendenhall standard declare the case is “close”
20
before making the ultimate decision. See, e.g., People v. Cascio, 932 P.2d
1381, 1385 (Colo. 1997) (en banc) (noting that the distinction between a
consensual encounter and investigatory stop is “sometimes subtle” and
presents a “close question”); State v. Jestice, 861 A.2d 1060, 1062 (Vt.
2004) (finding a “close question” of seizure with a uniformed officer in a
marked police vehicle shining headlights into defendant’s car and
essentially blocking defendant’s exit).
Application of the free-to-leave standard to particular facts by a
majority of the United States Supreme Court has generated sharp dissent.
By way of example, the Supreme Court’s application of the free-to-leave
doctrine yielded a controversial result in INS v. Delgado, 466 U.S. 210, 104
S. Ct. 1758 (1984). In Delgado, INS officers entered two factories and
questioned the entire work force looking for illegal workers. Id. at 212,
104 S. Ct. at 1760. INS agents were posted at the doors of the exits to the
factories and caused “some disruption.” Id. at 218, 104 S. Ct. at 1763.
The workers, however, were free to move around the factory floors. Id. The
Court found no seizure. Id. at 220–21, 104 S. Ct. at 1765.
Justice Brennan, joined by Justice Marshall, dissented. According
to Justice Brennan, the majority opinion reflected “a studied air of
unreality” and reached its conclusion “only through a considerable feat of
legerdemain.” Id. at 226, 104 S. Ct. at 1767–68 (Brennan, J., dissenting).
Although there was no physical restraint on individuals, Justice Brennan
emphasized the show of authority represented by a force of fifteen to
twenty-five agents systematically sweeping the workforce floor with guards
stationed at each exit. Id. at 229–30, 104 S. Ct. at 1769–70. According to
Justice Brennan, no reasonable person would have felt free to leave or
terminate the encounter with the INS officers. Id. at 230, 104 S. Ct. at
1770.
21
Another controversial free-to-leave case is Drayton, 536 U.S. 194,
122 S. Ct. 2105, where the Supreme Court considered whether passengers
on a bus were seized under the Fourth Amendment. In Drayton, three
plainclothes officers boarded a bus. Id. at 197, 122 S. Ct. at 2109. One
officer knelt backwards in the driver’s seat at the front of the bus where
all passengers could be observed. Id. at 197–98, 122 S. Ct. at 2109. A
second officer was stationed at the back of the bus, while a third officer
moved up and down the bus questioning passengers. Id. at 198, 122 S. Ct.
at 2109. A 6–3 majority of the Supreme Court held that no seizure
occurred under these facts. Id. at 208, 122 S. Ct. at 2114. The majority
reasoned that a reasonable person would feel free to terminate the
encounter with the police. Id. at 206–07, 122 S. Ct. at 2113–14. Justice
Souter, along with Justices Stevens and Ginsburg, dissented, asserting
that the presence of the officers created an “atmosphere of obligatory
participation” that no reasonable person would feel free to terminate. Id.
at 212, 122 S. Ct. at 2116 (Souter, J., dissenting).
A third controversial application of the free-to-leave doctrine by the
Supreme Court is California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct.
1547, 1550–51 (1991). In Hodari D., the Court considered whether a
defendant was seized. The defendant was standing with other youths in
what the Court labeled a high crime area. Id. at 622–23, 111 S. Ct. at
1549. When an unmarked police car approached, the youths ran. Id. at
623, 111 S. Ct. at 1549. The officers pursued the defendant, and a few
seconds before he was tackled, the defendant threw a rock of cocaine. Id.
A California appellate court had ruled that the encounter became a seizure
when the officers ran after the defendant. In re Hodari D., 265 Cal. Rptr.
79, 82–83 (Ct. App. 1989), rev’d sub nom. Hodari D., 499 U.S. 621, 111 S.
Ct. 1547.
22
In the Supreme Court’s reversal, the majority found that the seizure
did not occur until hands were laid on the suspect. Hodari D., 499 U.S.
at 628–29, 111 S. Ct. at 1552. The majority opinion focused on the
common law of arrest rather than the Bostick–Mendenhall standard. Id.
Justice Stevens, joined by Justice Marshall, dissented. Justice Stevens
emphasized that a seizure occurs when an individual’s personal liberty is
restrained “in some way” and that under the facts and circumstances, a
seizure clearly occurred. Id. at 637, 111 S. Ct. at 1556 (Stevens, J.,
dissenting).
The application of the Bostick–Mendenhall standard by the Supreme
Court in these cases and others has drawn criticism among scholars.
According to Professor Wayne LaFave, “the Court finds a perceived freedom
to depart in circumstances when only the most thick-skinned of suspects
would think such a choice was open to them.” Wayne R. LaFave,
Pinguitudinous Police, Pachydermatous Prey: Whence Fourth Amendment
Seizures, 1991 U. Ill. L. Rev. 729, 739–40 (1991).
So too has the free-to-leave standard been criticized by lower courts.
It is, of course, a convenient legal fiction to suppose that
most people would elect to walk away from a police officer who
asks to speak with them. Most would probably believe that it
is, at least, in their best interests to cooperate, if not their
duty. Indeed, walking away, or more precisely flight, can itself
be a basis for a seizure.
State v. Wilt, No. 19108, 2002 WL 272593, at *4 (Ohio Ct. App. Feb. 22,
2002); see, e.g., United States v. Schuett, No. 11-20574-BC, 2012 WL
3109394, at *6 (E.D. Mich. July 31, 2012) (“The ‘free to walk away’ test is,
it must be acknowledged, a legal fiction.”); Hill v. Commonwealth, 812
S.E.2d 452, 463 (Va. Ct. App. 2018) (“[T]he encounter is not consensual at
all and our oft repeated observation that these encounters are by definition
consensual because citizens can ignore the officer and just walk away is
23
as much a legal fiction as most citizens believe it to be.”), aff’d, 832 S.E.2d
33 (Va. 2019); Vogt, 850 N.W.2d at 262 n.14 (majority opinion) (“To some
extent, the ‘reasonable person’ here is a legal fiction. That defendants
often consent to searches of areas that reveal incriminating evidence
demonstrates that people often do not feel free to decline an officer’s
request, even absent a manifest show of authority.”).
Critics point to social-psychological research, dating to the Milgram
1963 obedience-to-authority study, that demonstrate how reasonable,
competent people comply with authority figures despite such compliance
cutting against their interest or judgment. See, e.g., Janice Nadler, No
Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct.
Rev. 153, 175–77 (2002) (comparing and contrasting the Milgram
experiment with the fact pattern of Drayton); Ric Simmons, Not “Voluntary”
but Still Reasonable: A New Paradigm for Understanding the Consent
Searches Doctrine, 80 Ind. L.J. 773, 815, 817–18 (2005) [hereinafter
Simmons] (citing to studies finding civilians largely consent to all search
requests and criticizing the focus of the free-to-leave doctrine on civilian
rather than officer conduct, as well as finding little consideration of the
myriad reasons a reasonable person may feel unable to decline); Daniel J.
Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality,
Obscurity, and Incivility of the Fourth Amendment Consensual Encounter
Doctrine, 38 San Diego L. Rev. 507, 525–57 (2001) (exploring existing
caselaw to determine attributes of a reasonable person); Marcy Strauss,
Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 236, 239–44
(2001) [hereinafter Strauss] (exploring existing data and finding a number
of factors that may induce compliance with a request or demand from an
officer, particularly in communities of color).
24
Two recent empirical studies support the common sense observation
that most reasonable people do not feel free to leave when approached by
police in a variety of circumstances. For example, a recent study was
conducted to determine when people feel free to leave in situations
involving interactions with police on public sidewalks and in buses. See
David K. Kessler, Free to Leave? An Empirical Look at the Fourth
Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51, 51–52
(2008) [hereinafter Kessler]. The results of the study suggested that
[most] people walking on the sidewalk or riding on a bus would
not feel free to leave when approached by a police officer and
asked questions. . . . Even people who knew they had the
right to leave or not talk to the police officer still did not feel
free to leave.
Id. at 87.
The second study, examining how people react to security officers,
revealed that none of the eighty-three people studied questioned the
authority of the security officers. Alisa M. Smith et al., Testing Judicial
Assumptions of the “Consensual” Encounter: An Experimental Study, 14
Fla. Coastal L. Rev. 285, 291 (2013) [hereinafter Smith]. The authors
conclude that the research “contradicts the judicial assumption that
reasonable people feel free to ignore officers, decline their requests, and
terminate encounters with them, or alternatively that they are not merely
submitting to the authority of the police during these encounters.” Id. at
318; see also Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity
in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. &
Criminology 437, 439–42 (1988) (criticizing the free-to-leave doctrine, and
finding that actual application should result in virtually all police–citizen
encounters being seizures).
25
In this case, Fogg claims that the unwarranted seizure in this case
was unlawful under both article I, section 8 of the Iowa Constitution and
the Fourth Amendment of the United States Constitution. Fogg does not
suggest, however, that we should apply a standard other than that
established by the United States Supreme Court under Bostick–
Mendenhall. When a party raises the Iowa Constitution but does not
suggest a standard different than the federal precedent, we may apply the
standard more stringently than the federal caselaw. See State v. Oliver,
812 N.W.2d 636, 649–50 (Iowa 2012) (applying more stringent gross
disproportionality review under the Iowa Constitution than the Federal
Constitution); Pals, 805 N.W.2d at 771–72 (“Even where a party has not
advanced a different standard for interpreting a state constitutional
provision, we may apply the standard more stringently than federal
caselaw.”); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009) (finding
that even when applying the general principles of the United States
Supreme Court, federal standards may be differently applied under Iowa
Supreme Court review). See generally Cynthia Lee, Reasonableness with
Teeth: The Future of Fourth Amendment Reasonableness Analysis, 81 Miss.
L.J. 1133 (2012) (discussing the current framework utilized by the United
States Supreme Court and urging more stringent review of reasonableness
by courts).
4. Iowa caselaw on seizure of blocked vehicles. We have had two
cases that have considered application of search and seizure principles
involving parked vehicles: Harlan, 301 N.W.2d 717, and Wilkes, 756
N.W.2d 838. Both cases involved efforts to suppress evidence arising from
warrantless seizures under the Fourth Amendment.
In Harlan, we considered a challenge to a vehicle search of a driver
of a parked vehicle in the early morning hours. 301 N.W.2d at 718–19.
26
After following the defendant, the officer in Harlan pulled his cruiser over
and approached the driver of the vehicle. Id. at 719. When the officer
shined his flashlight into the vehicle, he saw that the driver’s eyes were
watery and bloodshot. He also smelled alcohol emanating from the
defendant. Id. The officer asked the defendant to perform field sobriety
tests and ultimately arrested the defendant for OWI. Id.
We held in Harlan that there was no seizure prior to the officer
obtaining reasonable suspicion to believe that the driver was driving his
vehicle while intoxicated. Id. at 720. We emphasized that the record
showed no threat of physical force, no use of compelling language, no use
of sirens, and no forced stop. Id.
In the second case, Wilkes, a uniformed officer shined headlights on
a truck parked in a quarry around midnight. 756 N.W.2d at 840, 844.
The officer pulled his vehicle to a distance of ten or fifteen feet behind the
truck. Id. at 840–41. The officer’s vehicle did not block the entrance to
the quarry in any way. Id. When the officer approached the defendant’s
vehicle, he smelled a strong odor of alcohol emanating from the defendant.
Id. at 841. After field sobriety and a preliminary breath test were
administered, Wilkes was arrested for OWI. Id. The district court and the
court of appeals concluded that an unlawful seizure had occurred and
suppressed the evidence obtained as a result of the seizure. Id.
We held in Wilkes that no seizure occurred under the facts of the
case. Id. at 844. We emphasized that while the police vehicle was parked
behind the vehicle driven by the defendant, “the ability of [the defendant]
to drive away was not substantially impaired.” Id. Indeed, we noted that
the defendant himself testified at the hearing that there were “at least two
ways for him to turn his truck around and leave the quarry, had he chosen
to do so.” Id.
27
5. State and federal caselaw. Although each case turns on its
unique facts, we have surveyed state and federal caselaw for guidance on
what constitutes a seizure in the context of police parking their
automobiles and approaching other automobiles. While “the officer’s
conduct is the primary focus,” other factors such as “time, place, and
attendant circumstances” have a bearing on the court’s analysis as well.
State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008).
In general, however, the cases suggest that where the facts
demonstrate a police vehicle blocks another vehicle from egress, a seizure
ordinarily occurs. See United States v. See, 574 F.3d 309, 311 (6th Cir.
2009) (holding that “the blocking of [the defendant’s car with a marked
patrol car] to determine the identity of the occupants and maintain the
status quo while obtaining this information was a warrantless Terry
seizure. . . . [A] reasonable person in [the defendant’s] position would not
have felt free to leave.”); United States v. Kerr, 817 F.2d 1384, 1386–87
(9th Cir. 1987) (finding that when a uniformed officer approached a car
after blocking the one-lane driveway as defendant was backing out, a
seizure occurred, leaving defendant with “no reasonable alternative except
an encounter with the police”); State v. Rosario, 162 A.3d 249, 255 (N.J.
2017) (“A person sitting in a lawfully parked car outside her home who
suddenly finds herself blocked in by a patrol car that shines a flood light
into the vehicle, only to have the officer exit his marked car and approach
the driver’s side of the vehicle, would not reasonably feel free to leave.”);
People v. Jennings, 385 N.E.2d 1045, 1045–46 (N.Y. 1978) (holding that
where police park perpendicular to car in parking lot, thereby blocking
vehicle, seizure occurs); Jestice, 861 A.2d at 1062–63 (finding a seizure
occurred where a uniformed officer parked police vehicle with headlights
on nose to nose with defendant’s car, even though there was still room to
28
maneuver cars). As aptly stated by Professor Wayne LaFave, “boxing the
car in,” among other things, “will likely convert the event into a Fourth
Amendment seizure.” 4 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 9.4(a), at 596–99 (5th ed. 2012).
The cases finding a seizure arising from the blocking of the
defendant’s vehicle by a police vehicle do not require complete closure of
all theoretical routes of egress. Instead, it is sufficient if the police vehicle
substantially limits maneuverability of the defendant’s vehicle. See
Johnson v. State, 414 S.W.3d 184, 193 (Tex. Crim. App. 2013) (finding
seizure certainly occurred when officer shone lights into and blocked
appellant’s car such that appellant would have had to “maneuver” his car
from its parking place if he wished to terminate the interaction); Jestice,
861 A.2d at 1062–63 (holding seizure occurs even though police cruiser
did not completely block defendant’s vehicle, but that defendant would
have had to back up and maneuver to avoid the officer). To find otherwise
inappropriately sterilizes the search and seizure protections and
would undermine “the right of the people to be secure in their
persons, houses, papers and effects,” and would obliterate one
of the most fundamental distinctions between our form of
government, where officers are under the law, and the police-
state where they are the law.
Johnson, 333 U.S. at 17, 68 S. Ct. at 370–71 (quoting U.S. Const. amend.
IV).
Further, the cases finding a seizure arising from the blocking of a
defendant’s vehicle by a police car do not require that the vehicle actually
come to a stop as a result of police action but only that the person in the
vehicle reasonably believe that he or she is not free to leave. See People v.
Guy, 329 N.W.2d 435, 440 (Mich. Ct. App. 1982) (“Although the initial stop
of the [defendant’s vehicle] in the driveway was not a result of [the officer’s]
29
actions, [the officer’s] partial blockage of the driveway and subsequent visit
to the [vehicle] clearly constituted a detention of the automobile and would
be the equivalent of a police initiated ‘stop.’ ”); Rosario, 162 A.3d at 255
(“The difference between a field inquiry and an investigative detention
always comes down to whether an objectively reasonable person would
have felt free to leave or to terminate the encounter with police. The
encounter is measured from a defendant’s perspective.”); Thomas v. State,
633 S.W.2d 334, 335 (Tex. App. 1982) (“Thus, when a person is sitting in
a parked car and a police officer orders him to roll down the window or to
open the door, there is at that point a temporary seizure.”); State v. Smith,
781 P.2d 879, 881 (Utah Ct. App. 1989) (stating question is whether
reasonable individual would believe they were not free to leave),
disapproved of on other grounds by State v. Lopez, 873 P.2d 1127, 1134–
35, 1135 n.3 (Utah 1994); State v. Burgess, 657 A.2d 202, 203 (Vt. 1995)
(“Courts have long held that a show of authority tending to inhibit a
suspect’s departure from the scene is sufficient to constitute a stop, even
though the vehicle is already stopped at the time of an approach by
police.”). These cases are consistent with the approach of the United
States Supreme Court in Adams v. Williams, 407 U.S. 143, 144–45, 149,
92 S. Ct. 1921, 1922–23, 1925 (1972), where implicit in the Supreme
Court’s opinion is the notion that a suspect who is already stationary does
not preclude the finding of seizure.
On the other hand, when a police vehicle merely parks beside or
behind a vehicle, or where the egress is only slightly restricted, a seizure
does not occur. See United States v. Carr, 674 F.3d 570, 573 (6th Cir.
2012) (finding no seizure occurred when the position of the police vehicle
left ample room for defendant to maneuver around the police vehicle);
United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir. 2003) (finding no
30
seizure occurred when the position of the police vehicle does not impede
defendant’s egress); Cascio, 932 P.2d at 1386–87 (noting where egress is
“only slightly restricted” by police vehicle, no seizure occurs); People v.
Black, 872 N.Y.S.2d 791, 793 (App. Div. 2009) (finding no seizure occurred
when defendant’s car was already stopped and police “did not park their
patrol vehicle in such a manner as to block the driveway in which the
vehicle was parked”). Generally, there must be additional facts and
circumstances to support a seizure, such as the glare of a spotlight or
other affirmative acts to generate a reasonable belief that the individual is
not free to leave. See Burgess, 657 A.2d at 203 (holding that a seizure
occurred when the officer pulled up behind defendant’s vehicle and
activated flashing blue police lights).
6. Discussion. Based on my review of the entire record, I conclude
that Fogg was seized in violation of article I, section 8 of the Iowa
Constitution.
Surely it is clear beyond peradventure that the Iowa founders
were devoted to civil liberties. Iowa’s state motto—“Our
liberties we prize and our rights we will maintain”—is not just
a slogan but reflects a libertarian spirit rather than state
authoritarianism.
State v. Brown, 930 N.W.2d 840, 882 (Iowa 2019) (Appel, J., dissenting).
The clear trend in the caselaw is to find a seizure when a police officer
substantially blocks a vehicle from leaving the scene, even if already
parked. Here, there is no question that Officer Frazier’s squad car
substantially impaired the ability of Fogg to leave the scene. The fact that
Fogg could have conceivably escaped is not determinative. See Johnson,
414 S.W.3d at 193; Jestice, 861 A.2d at 1062–63.
In addition, the totality of the circumstances here suggest a seizure
occurred. The headlights of the police cruiser shined head on, directly into
31
Fogg’s windshield. Officer Frazier approached the vehicle in full uniform.
Fogg was parked in a residential alley at 10:00 p.m. Under these
circumstances, we are confident that no reasonable person would feel free
to simply ignore the officer and leave the scene. Common sense, social-
psychological research, and empirical studies combine to strongly suggest
that reasonable people generally do not believe they can simply disregard
an approaching, uniformed police officer, and certainly would not feel free
to leave under the circumstances of this case. See generally Kessler, 99
J. Crim. L. & Criminology at 87; Simmons, 80 Ind. L.J. at 817–18; Smith,
14 Fla. Coastal L. Rev. 285 at 318; Strauss, 92 J. Crim. L. & Criminology
at 239–44.
It would be sheer poppycock to suggest that a reasonable person in
the circumstances of the case at hand would have felt free to avoid the
police vehicle blocking the alleyway while a uniformed officer approached.
Indeed, as Professor James Adams has noted,
Citizens are caught in a “Catch 22.” Exercise of citizen
rights in the face of police rights may cause police to escalate
the intrusiveness of the encounter and place the citizen at risk
of both physical harm and formal arrest. Failure to exercise
citizen rights by responding to the officer, however, may be
viewed as consensual conduct removing the encounter from
Fourth Amendment analysis.
James A. Adams, Search and Seizure as Seen by Supreme Court Justices:
Are They Serious or Is This Just Judicial Humor, 12 St. Louis U. Pub. L.
Rev. 413, 441 (1993). A reasonable person in Fogg’s shoes would have
reason to fear the consequences of a mad dash to escape, which could end
in the application of force or potential criminal charges.
A central pillar of our legal system is truth telling. A legal system
that trumpets robust protection to individuals based on their reasonable
belief and then applies the principle out of existence risks losing public
32
trust. It is hard to see how anyone could seriously believe that under the
circumstances presented here, a reasonable person would feel free to bob,
dodge, and evade Officer Frazier. Would a reasonable person, faced with
a marked patrol car blocking forward progress and shining headlights in
her face, attempt to back 125 feet down a dark, narrow alleyway as a
uniformed officer marched toward her? Would a reasonable person
attempt a three-point turn, on darkened private property no less, or
alternatively, drive in a darkened, grassy, unfamiliar ditch under these
circumstances? And is the expectation that Officer Frazier would help
direct her as she drove over the neighbor’s grass, or private property, and
then toss a friendly wave and neighborly smile as she drove away? Really?
Perhaps Justice Jackson said it best when he stated that Fourth
Amendment protections are
not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none
is so effective in cowing a population, crushing the spirit of
the individual and putting terror in every heart. Uncontrolled
search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government. And
one need only briefly to have dwelt and worked among a
people possessed of many admirable qualities but deprived of
these rights to know that the human personality deteriorates
and dignity and self-reliance disappear where homes, persons
and possessions are subject at any hour to unheralded search
and seizure by the police.
Brinegar v. United States, 338 U.S. 160, 180–81, 69 S. Ct. 1302, 1313
(1949) (Jackson, J., dissenting). We have consistently held, both
nationally and in Iowa, that constitutional protections against undue
police action are the bulwark against totalitarian state action. Indeed,
[t]he security of one’s privacy against arbitrary intrusion by
the police—which is at the core of the Fourth Amendment—is
basic to a free society. It is therefore implicit in “the concept
of ordered liberty” and as such enforceable against the States
through the Due Process Clause.
33
Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct. 1359, 1361 (1949),
overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 654, 81 S. Ct.
1684, 1691 (1961).
For all the above reasons, I conclude that the district court and
today’s majority should have found that a seizure occurred in this case
under both the Fourth Amendment of the United States Constitution and
article I, section 8 of the Iowa Constitution.
C. Unbriefed Issues of Reasonable Suspicion and Community
Caretaking. Although the State below urged the district court to deny the
motion to suppress based on reasonable suspicion that a crime was afoot
or upon the community caretaking exception to the warrant requirement,
the State has not briefed these issues in its appeal. When the State does
not raise an argument on appeal, we have found waiver. State v. Dudley,
856 N.W.2d 668, 678–79 (Iowa 2014) (finding that the state waived their
harmless-error argument by failing to raise it on appeal); Short, 851
N.W.2d at 479 (holding that the state waived arguments regarding
allegedly defective warrant or exigent circumstances on appeal due to
failure to raise argument); In re Det. of Blaise, 830 N.W.2d 310, 319–21,
319 n.5 (Iowa 2013) (stating that the state waives their harmless-error
argument by failing to raise on appeal, but noting exception where
defendant claims ineffective assistance of counsel and has burden of
showing prejudice). When the state has declined to raise directly, or by
implication, alternate issues on appeal, reaching the merits of totally
unbriefed claims would require us to assume a partisan role in this
litigation. And we have always held that we will not decide or consider
issues raised for the first time during oral argument. See Inghram v.
Dairyland Mut. Ins., 215 N.W.2d 239, 240 (Iowa 1974) (en banc) (“To reach
the merits of this case would require us to assume a partisan role and
34
undertake the appellant’s research and advocacy. This role is one we
refuse to assume.”). 2
IV. Conclusion.
For the above reasons, the majority should have vacated the court
of appeals ruling, reversed the ruling of the district court denying the
motion to suppress evidence, and ordered the matter remanded to the
district court. Accordingly, I respectfully dissent.
Wiggins, C.J., joins this dissent.
2In King v. State, 818 N.W.2d 1 (Iowa 2012), the majority of this court considered
issues not raised by the appellee in an interlocutory appeal. In that case, the parties
extensively briefed the issues not raised in the interlocutory appeal before the district
court, and the extensive trial court briefing was made part of the appellate record.
Additionally, the plaintiffs did not object to consideration of the larger issues as part of
the interlocutory appeal, and the issue before the court was interrelated with the issues
not briefed on appeal. Id. at 11–12. Here, the appeal is not interlocutory, the briefing
before the trial court was conclusory at best, and the opposing party has not consented
to the consideration of the unbriefed issues.