State of Iowa v. Jose Manuel Cruz Ordonez ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0407
Filed April 17, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSE MANUEL CRUZ ORDONEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
Jose Manuel Cruz Ordonez appeals the denial of his motion to suppress
evidence of a field sobriety test and his subsequent conviction for operating a
vehicle while intoxicated (first offense). AFFIRMED.
Benjamin D. Bergmann and Alexander D. Smith of Parrish Kruidenier Dunn
Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Judge.
Jose Manuel Cruz Ordonez appeals the denial of his motion to suppress
evidence of a field sobriety test.
I. Background Facts and Proceedings
A patrol sergeant with the Iowa State University Department of Public Safety
stopped a vehicle for crossing the center line and driving at erratic speeds. After
observing signs of intoxication in driver Cruz Ordonez, the officer asked him to step
out of the vehicle. Within a few minutes, the officer placed him in his squad car
and administered the horizontal-gaze nystagmus (HGN) test.1 According to the
officer, Cruz Ordonez failed the test. Cruz Ordonez refused to submit to further
sobriety testing. The officer arrested him for operating a motor vehicle while
intoxicated.
The State charged Cruz Ordonez with operating while intoxicated (first
offense) and possession of marijuana (first offense). Cruz Ordonez agreed to
plead guilty to the OWI charge in exchange for dismissal of “all companions.” The
district court adjudged him guilty and placed him on probation.
1
The Supreme Court has described the test as follows:
The “horizontal gaze nystagmus” test measures the extent to which a
person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the
understanding that, whereas everyone’s eyes exhibit some jerking while
turning to the side, when the subject is intoxicated “the onset of the jerking
occurs after fewer degrees of turning, and the jerking at more extreme
angles becomes more distinct.”
Pennsylvania v. Muniz, 496 U.S. 582, 585 n.1 (1990) (quoting 1 R. Erwin et al., Defense
of Drunk Driving Cases § 8A.99, pp. 8A–43, 8A–45 (1989)); see State v. Murphy, 451
N.W.2d 154, 156 (Iowa 1990) (“An inability of the eyes to maintain visual fixation as they
are turned from side to side is known as ‘horizontal gaze nystagmus.’”).
3
Cruz Ordonez filed a postconviction-relief application, which resulted in his
plea being set aside.2 The district court scheduled the matter for trial.
Meanwhile, Cruz Ordonez moved to suppress “evidence of his performance
in or results of the HGN test, any observations by officers during that test, along
with any other evidence or observations of law enforcement” after the test was
administered. He alleged,
The officers’ conduct in this case violated [his] privilege against self-
incrimination as protected by article I, section 9 of the Iowa
Constitution and/or the Fifth and Fourteenth Amendments.
Alternatively, the officers’ conduct amounted to a violation of Mr.
Cruz Ordonez’s right against illegal searches as guaranteed by
article I, section 8 of the Iowa Constitution and/or the Fourth
Amendment.
After an evidentiary hearing, the district court denied the motion.
Cruz Ordonez waived his right to a jury trial. The State agreed to dismiss
the marijuana charge and proceed solely with the OWI charge. By further
agreement, trial was held on the minutes of testimony. The district court adjudged
Cruz Ordonez guilty of operating while intoxicated (first offense) and imposed
sentence. On appeal, Cruz Ordonez reprises his arguments for suppression of the
HGN test.3
II. Analysis
A. Fifth Amendment
Cruz Ordonez argues “[t]he officers’ conduct in this case violated [his]
privilege against self-incrimination as protected by article I, section 9 of the Iowa
2
The criminal record does not indicate the basis for the postconviction court’s ruling.
3
Cruz Ordonez’s suppression motion also raised a challenge to an inventory search. The
court’s ruling on that issue is not a ground for appeal.
4
Constitution.” “Although the Iowa Constitution does not contain an explicit right
against compelled self-incrimination, we have found such a right under the due
process clause of the Iowa Constitution.” State v. Schlitter, 881 N.W.2d 380, 402
(Iowa 2016).
Cruz Ordonez does not suggest we should apply a different framework
under the Iowa Constitution than is applied under the United States Constitution.
He makes the same argument under both provisions, asserting “under both the
federal constitution and the State constitution . . . in an HGN test there has to be
some opportunity for the individual to deny taking the test.”
The district court resolved the issue under the Fifth Amendment. Because
we can do the same, “we need not and do not reach the claim under the Iowa
Constitution.” State v. Washington, 832 N.W.2d 650, 655 (Iowa 2013).
The framework for analysis of a Fifth Amendment claim was summarized in
Muniz, 496 U.S. at 588–89 as follows:
The Self-Incrimination Clause of the Fifth Amendment provides that
no “person . . . shall be compelled in any criminal case to be a witness
against himself.” Although the text does not delineate the ways in
which a person might be made a “witness against himself,” we have
long held that the privilege does not protect a suspect from being
compelled by the State to produce “real or physical evidence.”
Rather, the privilege “protects an accused only from being compelled
to testify against himself, or otherwise provide the State with
evidence of a testimonial or communicative nature.” “[I]n order to be
testimonial, an accused’s communication must itself, explicitly or
implicitly, relate a factual assertion or disclose information. Only then
is a person compelled to be a ‘witness’ against himself.”
(Alterations in original) (footnote omitted) (internal citations omitted). The Court
applied this framework to decide “whether various incriminating utterances of a
drunken-driving suspect, made while performing a series of sobriety tests,
5
constitute testimonial responses to custodial interrogation.” Id. at 584. In pertinent
part, the court held “any slurring of speech and other evidence of lack of muscular
coordination revealed by [the defendant’s] responses to [the officer’s] direct
questions constitute nontestimonial components of those responses.” Id. at 592.
The Iowa Supreme Court also examined whether physical acts are
testimonial under the Fifth Amendment. In a long line of opinions, the court
uniformly made the same distinction that the Court made in Muniz.
Fifty years ago, the court addressed the precise question we face here:
whether field sobriety test results are testimonial in nature. In State v. Heisdorffer,
the court concluded the performance of field sobriety tests “does not amount to
evidence by communication in whatever form that communication might take.” 164
N.W.2d 173, 175 (Iowa 1969), abrogated on other grounds by State v. Vietor, 261
N.W.2d 828 (Iowa 1978) (citation omitted). The court continued, “The observation
of defendant during the tests makes his actions real or physical evidence against
himself, rather than testimonial evidence. Such tests are more nearly akin to the
taking of blood samples, fingerprints or handwriting exemplars,” none of which
“violate his privilege against self-incrimination.” Id.
The court reaffirmed this holding in State v. Rauhauser, 272 N.W.2d 432,
436 (Iowa 1978). There, the court stated, “The Fifth Amendment privilege against
self-incrimination extends only to evidence of a testimonial nature. It does not
protect an accused from the compulsory display of measurable or identifiable
physical characteristics.” Rauhauser, 272 N.W.2d at 436.
The court again reaffirmed Heisdorffer in State v. Mannion, where the issue
was whether a videotape of a defendant’s refusal to take field sobriety tests on
6
camera violated the defendant’s right against self-incrimination. 414 N.W.2d 119,
120 (Iowa 1987). The court stated, “[s]tanding alone, in the absence of any
evidence of [the defendant’s] refusal, the videotape was admissible as physical,
rather than testimonial, evidence. It does not violate the Fifth Amendment to
compel physical, or real, evidence from an accused.” Id.
This court reached the same conclusion in State v. Marks, an opinion on
which the district court relied. 644 N.W.2d 35, 37 (Iowa Ct. App. 2002). We
categorically stated, “The results of a field sobriety test are not testimonial
evidence.” Id. And we said a request “to provide non-testimonial evidence does
not lead to a Fifth Amendment violation.” Id.; see also State v. Serrine, No. 15-
1496, 2017 WL 108290, at *5 (Iowa Ct. App. Jan. 11, 2017) (concluding it is not
our role to revisit the Iowa Supreme Court holdings that sobriety tests are not
testimonial evidence).
This precedent mandates a conclusion that the HGN field sobriety test did
not implicate Cruz Ordonez’s Fifth Amendment right against self-incrimination.
The test elicited a physical, non-testimonial response rather than a communicative,
testimonial response.
Nor does the claimed absence of an opportunity to “deny the test” implicate
the Fifth Amendment right against self-incrimination. Cruz Ordonez cites no
precedent to support the proposition that an officer must tell an OWI suspect of the
right to refuse field sobriety tests. Cf. Otto v. Comm’r of Pub. Safety, ___ N.W.2d
___, 2019 WL 1320598, at *2 (Minn. Ct. App. 2019) (agreeing with district court’s
conclusion that no statutory authority or case law supported the argument that the
officer had an obligation to tell the appellant he could refuse all field sobriety tests).
7
More critically, he does not explain how that type of advice would convert a field
sobriety test from nontestimonial to testimonial evidence, triggering the right
against self-incrimination. Cf. State v. Farrow, 144 A.3d 1036, 1045 (Vt. 2016)
(stating “it is not clear how applying [constitutional] protections to nontestimonial
evidence, including, presumably, the field sobriety exercises themselves, would
lead to a requirement that police warn an individual that her refusal may be used
as evidence in court”). In short, Cruz Ordonez’s effort to circumvent established
precedent is unavailing.
B. Fourth Amendment
Cruz Ordonez next argues the HGN test was an unreasonable warrantless
search not supported by the consent exception to the warrant requirement. Again,
he appears to make the argument under the Fourth Amendment to the United
States Constitution and article I section 8 of the Iowa Constitution.
“We follow an independent approach in the application of our state
constitution.” State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). “However, when
a party does not argue an independent approach, ‘we ordinarily apply the
substantive federal standards but reserve the right to apply the standard in a
fashion different from federal precedent.’” Id. (citation omitted).
“Probable cause of a crime supports an arrest, while reasonable suspicion
of a crime allows a peace officer to stop and briefly detain a person to conduct a
further investigation.” Id; see also State v. Baker, ___ N.W.2d ___, ___, 2019 WL
1412583, at *4 (Iowa 2019).
In Marks, 644 N.W.2d at 38, we stated, “When an officer has reasonable
cause to believe a driver is operating while intoxicated, a suspect may be briefly
8
detained, asked to perform field sobriety tests and comply with other investigatory
requests, without violating the suspect’s Fourth Amendment rights.”
We conclude Marks is controlling. Cf. State v. Stevens, 394 N.W.2d 388,
391 (Iowa 1986) (stating officer “could also request the defendant to perform
dexterity tests to determine whether there was probable cause to arrest for
intoxication”); State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981) (stating officer’s
observation of driver’s bloodshot and watery eyes and alcohol on his breath was
“enough to allow a reasonable suspicion that [the defendant] was driving under the
influence of alcohol”); Vondrachek v. Comm’r of Pub. Safety, 906 N.W.2d 262, 269
(Minn. Ct. App. 2017) (“We evaluate the propriety of roadside sobriety testing as
an investigatory expansion of a traffic stop rather than as a search. An officer’s
request that a driver perform roadside sobriety testing is not a search within the
meaning of the Fourth Amendment.” (internal citation omitted)).
Because the Fourth Amendment was not implicated, we need not reach the
issue of whether Cruz Ordonez’s consent to the search was voluntary under the
United States Constitution. And because our analysis of whether article I, section
8 was implicated would be the same as our analysis under the Fourth Amendment,
we need not reach the consent issue under our constitutional provision. See State
v. Pettijohn, 899 N.W.2d 1, 25 (Iowa 2017).
We affirm the district court’s denial of Cruz Ordonez’s suppression motion
and Cruz Ordonez’s conviction, judgment, and sentence for operating a motor
vehicle while intoxicated (first offense).
AFFIRMED.