State of Iowa v. Douglas Henry Ollinger ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1619
Filed July 9, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DOUGLAS HENRY OLLINGER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pocahontas County, Kurt L. Wilke,
Judge.
A criminal defendant appeals his conviction and sentence following the
district court’s denial of a motion to suppress. REVERSED AND REMANDED.
Derek Johnson of Johnson & Bonzer, P.C., Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
General, Ann Beneke, County Attorney, and Ashley Bennett, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, J.
Douglas Ollinger challenges the investigative stop that resulted in his
arrest for operating while intoxicated (OWI), second offense. Ollinger claims his
constitutional protection against unreasonable searches and seizures was
violated when a sheriff’s deputy stopped his vehicle without reasonable suspicion
or probable cause. Because the State’s evidence did not justify the seizure, we
reverse the ruling denying Ollinger’s motion to suppress.
I. Background Facts and Proceedings
About 10:15 p.m. on March 14, 2014, concerned citizen Kim Himrod called
emergency dispatch to report a “suspicious vehicle” parked near her neighbor’s
farmstead in rural Pocahontas County. The neighbor’s house was empty
because the husband had died and the wife moved to a nursing facility. Himrod,
whose property was located about a quarter of a mile away, told dispatch she
watched the vehicle for half an hour before “she shined a flashlight on it, which
caused it to move or leave.”
Pocahontas Deputy Sherriff Steven Henderson responded to the call.
While driving toward the scene, the deputy received information the vehicle was
travelling on a county road toward Iowa Highway 4, but dispatch did not relay a
make or model of the car or which direction the car would be traveling on
Highway 4. The dispatch described the vehicle as a “small, dark-colored
passenger car.” Deputy Henderson saw two vehicles matching this general
description on Highway 4. He requested another officer obtain the license plate
number of the first vehicle. Deputy Henderson then followed the second vehicle
3
and pulled it over to investigate the “suspicious activity” reported to dispatch.
Ollinger was driving the car stopped by Deputy Henderson. The deputy noticed
Ollinger smelled like alcoholic beverages. Ollinger also had slurred speech and
bloodshot and watery eyes. The deputy arrested Ollinger for OWI.
The State charged Ollinger by trial information on March 26, 2014.
Ollinger filed a motion to suppress on April 23. After holding a suppression
hearing1 on May 27, 2014, the district court denied the motion. In its ruling, the
court discussed both reasonable suspicion and probable cause but based its
order solely on reasonable suspicion for the stop. The court cited Ollinger’s
“furtive” action of leaving the property after Himrod shined her flashlight at his
car. Ollinger was tried on the minutes of testimony and found guilty. On
September 18, 2014, the court sentenced Ollinger to 365 days of incarceration
with all but seven days suspended. The court placed him on probation and
ordered a fine of $1875.
II. Standard of Review
Ollinger asserts the investigative stop violated both his state and federal
constitutional rights to be free from unreasonable search and seizure. U.S.
Const. amend. IV; Iowa Const. art. I, § 8. The constitutional dimensions of these
claims call for a de novo review. State v. Tyler, 830 N.W.2d 288, 291 (Iowa
2013). A de novo review requires “an independent evaluation of the totality of
the circumstances as shown by the entire record.” State v. Pals, 805 N.W.2d
767, 771 (Iowa 2011) (citation and internal quotation marks omitted).
1
Deputy Henderson was the only witness at the suppression hearing.
4
III. Analysis
A traffic stop is permissible under the state and federal constitutions when
supported by probable cause or reasonable suspicion of a crime. State v.
McIver, 858 N.W.2d 699, 702 (Iowa 2015). Law enforcement may perform an
investigative stop “[i]n the absence of probable cause if the police have
reasonable suspicion to believe criminal activity is taking place.” Pals, 805
N.W.2d at 774. When the motorist challenges the stop on the basis that
reasonable suspicion was not present, the State must show the officer had
specific and articulable facts, which when taken together with reasonable
inferences, would lead one to believe criminal activity had occurred. State v.
Tague, 676 N.W.2d 197, 204 (Iowa 2004).
“Probable cause exists if the totality of the circumstances as viewed by a
reasonable and prudent person would lead that person to believe that a crime
has been or is being committed and that the arrestee committed or is committing
it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990). The State must prove
by a preponderance of the evidence that the officer had probable cause to stop
the vehicle. State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). Any “traffic
violation, no matter how minor, gives a police officer probable cause to stop the
motorist.” State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006) (citation omitted).
A. Reasonable Suspicion
Deputy Henderson had limited information available to him. He learned
from dispatch that a named citizen, Himrod, had reported a “suspicious vehicle”
near a vacant farmstead a quarter of a mile away from her property. Himrod
5
could not see if the vehicle was on her neighbor’s property or parked on the road.
Himrod watched the vehicle for approximately a half hour and told dispatch that
when she shined a flashlight at the vehicle, it drove away. The deputy admitted
he did not know if the driver of the vehicle could see the beam from Himrod’s
flashlight. Himrod gave a “general description” of the vehicle but was not able to
provide the color, make, model, or license plate number.
While driving to the scene, Deputy Henderson saw two cars matching the
general description given by Himrod. Deputy Henderson bypassed the first car
and chose to stop the second car, which was driven by Ollinger. The deputy
testified he was not certain he was stopping the same car that Himrod reported.
Even if Deputy Henderson correctly played the fifty-fifty odds and stopped the car
that was the subject of Himrod’s concerns, her concerns did not amount to
reasonable suspicion that a crime had been committed. The deputy testified that
to his knowledge Himrod had not reported any activity that was illegal.
In deciding this suppression issue, we first turn to case law on citizen tips.
In State v. Kooima, 833 N.W.2d 202, 204 (Iowa 2013), an anonymous tipster
reported seeing several individuals he believed to be intoxicated preparing to
drive away. The tipster in Kooima was able to provide the license plate number,
make, model, color, and some description of the driver. Kooima, 833 N.W2d at
204. But our supreme court held that a call from “an anonymous tipster, without
relaying a personal observation of erratic driving, other facts to establish the
driver is intoxicated, or details not available to the general public as to the
6
defendant’s future actions does not have the requisite indicia of reliability to
justify an investigatory stop.” Id. at 210-11.
In this case, a named citizen supplied the tip. Information imparted by a
citizen informant is generally considered reliable. See State v. Niehaus, 452
N.W.2d 184, 189 (Iowa 1990). But even if we assume Himrod was a reliable
source, the quality of her information was wanting in two regards. First, she
offered only a vague accusation of “suspicious” behavior by the driver of the
vehicle parked at her neighbor’s place and second, she gave dispatch only a
general description of that vehicle.
On the first point, the deputy testified that based on Himrod’s report, he
was investigating a possible trespass or burglary, adding “I mean, a number of
different crimes associated with the—that could occur at an abandoned farm
place like that.” The deputy testified vacant farm houses in rural counties were
targets for burglars: “[I]t’s just a matter of time when somebody comes on the
property looking for something.” But the deputy agreed he had no information
whether anyone was authorized to be on the property of Himrod’s neighbor
before stopping Ollinger’s car.
We recognize seemingly innocent activities may combine with other
factors to give experienced law enforcement officers cause to suspect
wrongdoing. State v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995). But a
generalized suspicion that any vehicle in the vicinity of a closed business might
be engaged in unlawful activity is not enough to allow an invasion of the driver’s
privacy. Id. The same concept applies here. A blanket concern about burglaries
7
in rural Iowa did not provide the deputy reasonable suspicion for a stop in this
particular case. The deputy was unaware of any specific burglaries at the
location in question.
Even if we assume Himrod’s action in shining the flashlight prompted the
car to leave, “[w]e do not know of any case law or other authority which suggests
that a private citizen’s avoidance of another private citizen . . . is indicative of
criminal behavior.” See id. This case is unlike the stop upheld in State v.
Richardson, 501 N.W.2d 495, 497 (Iowa 1993), when the defendant’s vehicle
was parked late at night in a commercial area, which had a history of illegal
activity and no legitimate attractions, and left to avoid an approaching police
officer. Here, the deputy stopped a car which may have been seen by a citizen
parked near a vacant farm house—without any other factors contributing to
reasonable suspicion. The indefinite information reported to dispatch and the
deputy’s general knowledge concerning rural burglaries did not give the deputy a
legitimate reason to conduct an investigative stop. See Haviland, 532 N.W.2d at
770.
B. Probable Cause
As a back-up argument, the State contends that if we reject the stop
based on the concerned citizen’s report, we may uphold it based on probable
cause of traffic offense, specifically a violation of Iowa Code section 321.297(1)
(2013), which requires that vehicles be driven on the right half of the roadway.
Ollinger argues the State may not rely on this alternative ground because the
district court’s ruling rested solely on Deputy Henderson’s reasonable suspicion
8
that Ollinger was involved in a trespass or burglary. See DeVoss v. State, 648
N.W.2d 56, 63 (Iowa 2002).
We may uphold the ruling of the district court “on a ground other than the
one upon which the district court relied provided the ground was urged in that
court.” Id. at 61. The traffic-offense rationale was anticipated by Ollinger in his
brief in support of the motion to suppress; the defense argued “one isolated ‘drift’
to the center and ‘possibly’ touching or crossing the centerline” does not provide
grounds for the stop. The district court noted Ollinger’s argument that a “single
episode of veering to the centerline, but not crossing, adds nothing to [the
State’s] case (citing State v. Tague, 676 N.W.2d 197 (Iowa 2004)).” While not
the express basis for the decision to uphold the stop, the probable-cause ground
was urged in the district court and is properly before us on appeal.
To establish probable cause the State asserts Deputy Henderson saw
Ollinger violate section 321.297(1).2 But the deputy’s testimony at the
suppression hearing does not support a violation of that statute. During his direct
examination, Deputy Henderson testified: “As I was attempting to catch up to the
vehicle, I did notice it cross the centerline.” Deputy Henderson’s resolve
softened significantly as he was questioned further. During cross-examination,
the deputy admitted he was as far as two-hundred yards away and on the phone
with another officer when “it appeared” to him that Ollinger “drifted over to the
centerline and crossed the centerline.” The deputy also said: “I believe he did
2
“A vehicle shall be driven upon the right half of the roadway upon all roadways of
sufficient width, except [for circumstances not present in this case].” Iowa Code
§ 321.297(1).
9
touch the centerline. He was on the centerline.” Finally when asked by defense
counsel “[s]o you think [Ollinger’s] vehicle touched the centerline, not sure if he
crossed it?” Deputy Henderson responded, “Correct.”
In Tague, our supreme court determined a police officer lacked probable
cause to stop a motorist for a violation of section 321.297 when the motorist
crossed an edge-line marking, not the center line of the roadway. 676 N.W.2d at
203. The Tague court also decided the motorist’s “single incident of crossing the
edge line for a brief moment” did not give the officer probable cause to stop for a
violation of section 321.306, which requires a vehicle be driven “as nearly as
practical entirely within a single lane.” Id. at 204.
While not controlling, we find the discussion concerning incidental and
momentary crossing of the edge line in Tague to be instructive. Deputy
Henderson was not sure if Ollinger’s car crossed or just touched the centerline.
The language of section 321.297(1) does not criminalize touching the centerline
but rather mandates “driving” on the right half of the roadway. We are persuaded
by decisions from other jurisdictions analyzing similar traffic statutes. See, e.g.,
People v. Del Re, No. 2-11-0984, 2012 WL 6967969, at *5 (Ill. App. Ct. June 12,
2012) (opining that “driving on the centerline pavement marking and driving ‘upon
the right half of the roadway’ (625 ILCS 5/11–701(a) (West 2010)) are not
necessarily mutually exclusive acts”); State v. McGregor, No. 107, 855, 2013 WL
1010590, at *2-3 (Kan. Ct. App. Mar. 8, 2013) (reversing conviction for failing to
drive on right side of roadway when defendant “touched the center line once with
her driver’s side tires and some bodywork extended over the line itself” but “her
10
vehicle traveled on the right half of the roadway and did not cross the center
line”); State v. Loyd, 326 S.W.3d 908, 915 (Mo. Ct. App. 2010) (concluding
driving car with tires “touching the center line” alone was an insufficient basis to
conduct a traffic stop); Commonwealth v. Enick, 70 A.3d 843, 848 (Pa. Super. Ct.
2013) (upholding stop under similar traffic violation but noting its analysis did not
“foreclose the possibility that a momentary and minor violation of [75 Pa. C.S.A.]
§ 3301 might, in a different case, be insufficient to establish probable cause for a
vehicle stop”).
Deputy Henderson did not have a good view of Ollinger’s path of travel
and was unconvincing in his testimony concerning the traffic violation, which is
likely why the district court did not rely on probable cause to uphold the stop. In
our de novo review of the record, we conclude probable cause did not exist to
find a violation of section 321.297(1). See State v. Stanley, No. 12-1855, 2013
WL 3458079, at *2 (Iowa Ct. App. 2013) (holding no probable cause to believe
defendant violated section 321.297 when deputy did not see, but assumed, car
crossed center line).
Because the record shows neither reasonable suspicion nor probable
cause that Ollinger was committing a crime, the stop of his vehicle violated his
rights under the Fourth Amendment of the United States Constitution and article
I, section 8 of the Iowa Constitution. We reverse the denial of Ollinger’s motion
to suppress and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.