State of Iowa v. Deng G. Majouk ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1850
Filed December 16, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENG G. MAJOUK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Christopher Kemp
(suppression) and William A. Price (trial), District Associate Judges.
Deng Majouk appeals the district court’s entry of judgment, sentence, and
denial of his motion to suppress evidence. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, and Tabor and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.
Deng Garang Majouk, found guilty of operating a motor vehicle while under
the influence, appeals the district court’s denial of his motion to suppress evidence
gained during a stop of his vehicle.
I. Background Facts and Proceedings
Early one morning, a Clive police officer stopped Majouk for having his high
beams on and a brake light out and for driving seven miles over the speed limit.
The officer observed a cup in the center console containing what appeared to be
tobacco. Majouk appeared to be under the age of eighteen, raising a suspicion of
under-age tobacco use. The officer also spied a green stalk in the container, which
was “consistent with marijuana.” He asked Majouk whether there was any
marijuana in the car. Majouk responded, “no.” The officer told Majouk to step out,
said he intended to search the car, and asked whether he would find any
marijuana. Again, Majouk responded “no.” The officer patted Majouk down for
weapons and said he could sit in the rear passenger seat of his patrol car. The
officer said the vehicle search would be “real quick.” Majouk was not handcuffed,
and the rear car door was left open.
After Majouk seated himself, the officer asked, “[Y]ou haven’t smoked
anything tonight? Not even earlier?” At that point, Majouk admitted he smoked
marijuana “a couple of hours ago.” When Majouk asked if it was a problem, the
officer responded “when you become impaired and you get behind the wheel and
you’re driving, that’s an OWI, it could be an OWI.” The officer reiterated his
intention to “search his car real quick” and said “if he did not find anything he was
gonna make sure [Majouk] was valid to drive and stuff and [he would] get [him] out
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of here.” The officer found nothing except a few “crumbs” in the back seat. He
advised Majouk he would run “a couple tests” to make sure Majouk was “not too
high to be driving around.” The officer administered three field sobriety tests.
Majouk showed no signs of impairment on the horizontal gaze nystagmus test but
failed the “walk and turn” and “one leg stand” tests.
The State charged Majouk with operating a motor vehicle while intoxicated,
first offense. Majouk filed a suppression motion. The officer testified he placed
Majouk in his patrol car for safety reasons. The district court denied the
suppression motion and found Majouk guilty on the minutes of testimony. The
court sentenced Majouk. The sentence included a fine of $1250.
On appeal, Majouk contends (A) the district court abused its discretion in
failing to suspend the fine; (B) the district court should have granted his
suppression motion; and (C) the evidence was insufficient to support the district
court’s finding of guilt.
II. Analysis
A. Fine
At sentencing, the district court informed Majouk he was “fined the amount
of $1250 . . . that’s required by law.” Majouk contends the court “had discretion to
suspend his fine . . . but does not appear to have exercised that discretion.” See
State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999) (“When a sentencing court has
discretion, it must exercise that discretion.”).
Iowa Code section 321J.2(3)(c) (2019) states, “A first offense is punishable
by… [a]ssessment of a fine of one thousand two hundred fifty dollars.” Section
907.3(3)(c)(4) prohibits the suspension of “any part of a sentence not involving
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incarceration imposed pursuant to section 321J.2, subsection 3, 4, or 5, beyond
the mandatory minimum if . . . the defendant refused to consent to testing
requested in accordance with section 321J.6.”1
The Clive police officer who stopped Majouk reported that “Majouk refused
to provide a urine sample for testing.” Majouk’s test refusal triggered the
prohibition on suspension of the fine set forth in section 907.3. Cf. State v. Kramer,
773 N.W.2d 897, 898 (Iowa Ct. App. 2009) (“[W]hen none of the circumstances
enumerated in [a predecessor to section 907.3] that prohibit suspension of a fine
apply, the district court has discretion to suspend the fine portion of the sentence
in an [operating while intoxicated] first offense conviction under Iowa Code section
321J.2(2)(a).”). We conclude the district court had no discretion to suspend the
fine.
B. Suppression Ruling
Majouk contends the district court should have suppressed his admission
to consumption of marijuana. In his view, the admission was made while he was
in custody and without the benefit of Miranda warnings. See Miranda v. Arizona,
384 U.S.436, 471, 478–79 (1966) (“[W]e hold that when an individual is taken into
custody or otherwise deprived of his freedom by the authorities in any significant
1 Iowa Code section 321J.6(1) states:
A person who operates a motor vehicle in this state under
circumstances which give reasonable grounds to believe that the
person has been operating a motor vehicle in violation of section
321J.2 or 321J.2A is deemed to have given consent to the
withdrawal of specimens of the person’s blood, breath, or urine and
to a chemical test or tests of the specimens for the purpose of
determining the alcohol concentration or presence of a controlled
substance or other drugs, subject to this section.
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way and is subjected to questioning, the privilege against self-incrimination is
jeopardized,” and stating the person “must be warned prior to any questioning that
he has the right to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires”). “Miranda warnings are only required if, at the time of police
questioning, the suspect is both: (1) in custody, and (2) subject to interrogation.”
State v. Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (citing Berkemer v. McCarty, 468
U.S. 420, 429 (1984)). The State concedes Majouk was interrogated, leaving only
the question of whether he was in custody when he admitted to marijuana use.
“For purposes of the Fifth Amendment, a suspect is in custody ‘as soon as
a suspect’s freedom of action is curtailed to a degree associated with formal
arrest.’” Id. (citation omitted). “[T]he only relevant inquiry is how a reasonable
[person] in the suspect’s position would have understood his [or her] situation.”
State v. Turner, 630 N.W.2d 601, 607 (Iowa 2001). The court considers four
factors in making this determination: “(1) the language used to summon the
individual; (2) the purpose, place, and manner of interrogation; (3) the extent to
which the defendant is confronted with evidence of her guilt; and (4) whether the
defendant is free to leave the place of questioning.” State v. Countryman, 572
N.W.2d 553, 558 (Iowa 1997).
The district court thoroughly analyzed the Countryman factors. The court’s
analysis finds support in several unpublished court of appeals opinions. On the
first factor, the court found “the language used to summon Mr. Majouk was not
aggressive or commanding”; “Majouk was not placed in handcuffs during this time”;
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and the officer “did not place hands on Mr. Majouk or provide any physical
assertion of control.” See State v. Plager, No. 03-0619, 2004 WL 144122, at *2–
3 (Iowa Ct. App. Jan. 28, 2004) (agreeing with the district court that the language
used by the officer to summon the defendant to the front seat of the patrol car was
“not threatening or intimidating” and the defendant “was not handcuffed”); cf. State
v. Williams, No. 18-1735, 2019 WL 6358423, at *4 (Iowa Ct. App. Nov. 27, 2019)
(noting the deputy’s tone “was conversational, albeit punctuated with statements
of incredulity”). Turning to the “purpose, place, and manner of the interrogation,”
the court found the officer “directed Mr. Majouk back to the squad car and had him
take a seat because he was about to conduct a probable cause search of
Mr. Majouk’s vehicle.” The court noted that the “interrogation took less than a
minute and was not a confrontational encounter.” See State v. Plager, No. 03-
0619, 2004 WL 144122, at *4 (Iowa Ct. App. Jan. 28, 2004) (“The mere fact that
[the officer] asked [the defendant] to come back to his patrol car, while he checked
the status of his driver’s license, did not transform an ordinary traffic stop into
custodial interrogation.”); see also State v. Page, No. 16-1404, 2017 WL 4049495,
at *2 (Iowa Ct. App. Sept. 13, 2017) (noting trooper asked the defendant “to come
back to his squad car in order to allow the officer to run his information through the
in-car computer and so [the defendant] could sign his citation”). As for the third
factor, the court acknowledged Majouk was “confronted with evidence of his guilt”
but only “before the two walked back to the squad car, when the officer explained
at the original interaction that ‘I know what that stuff is, have you been smoking
weed at all tonight?’” Page, 2017 WL 4049495, at *2 (noting “the defendant was
only ‘briefly confronted with the evidence of his guilt when the Deputy indicated
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that he had a strong odor of alcohol coming from his person’” (citation omitted)).
Finally, the court noted that the officer “kept the back door open during their brief
conversation.” See State v. Ewalt, No. 17-1189, 2018 WL 5292090, at *4 (Iowa
Ct. App. Oct. 24, 2018) (noting that while the defendant sat in the front passenger
seat of the patrol car, “the doors of the patrol car remained unlocked”). The court
concluded Majouk was not in custody when he was interrogated and, accordingly,
his admission without the benefit of prior Miranda warnings was admissible. On
our de novo review, including a review of the officer’s body camera footage, we
agree with the court’s reasoning. We conclude Majouk’s statement was not the
product of an unconstitutional custodial interrogation.
In reaching that conclusion, we have considered the officer’s safety
rationale for placing Majouk in the patrol car. Although he had previously patted
down Majouk for weapons, the officer testified it was department practice to have
a person sit in the patrol car during a “probable cause search” rather than “stand[]”
or “mill[] about.” We also have considered the officer’s persistent questioning of
Majouk about his consumption of marijuana. Because we are obligated to apply
an objective standard to the custody determination, the officer’s subjective intent
does not control the outcome. Notably, even after Majouk admitted to consuming
marijuana, the officer advised him he would be free to leave after the search was
completed if he was not impaired. A reasonable person in Majouk’s circumstances
would not have believed he or she was in custody. Accordingly, we affirm the
district court’s denial of Majouk’s suppression motion.
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C. Sufficiency of the Evidence
The district court found Majouk “guilty of operating while intoxicated . . . in
that he was operating under the influence of a drug that being marijuana.” See
Iowa Code § 321J.2(1)(a) (requiring proof that a person was operating a motor
vehicle “[w]hile under the influence of an alcoholic beverage or other drug or a
combination of such substances”). Majouk contends “the minutes of testimony
were not sufficient to establish that he was operating a motor vehicle while under
the influence of marijuana.”
“The conduct and demeanor of a person are important considerations in
determining whether a person is ‘under the influence’ under section 321J.2(1)(a).”
State v. Myers, 924 N.W.2d 823, 831 (Iowa 2019). Our review is for substantial
evidence. See State v. Folkers, 941 N.W.2d 337, 338 (Iowa 2020).
The usual signs of intoxication were absent. See State v. Gordon, No. 15-
2038, 2017 WL 5185401, at *3 (Iowa Ct. App. Nov. 8, 2017) (citing witnesses’
belief that the defendant was under the influence of marijuana based on his “lack
of eye convergence, rebound dilation of the pupils, marked reddening of the
conjunctiva, eyelid tremors, a high pulse, and high blood pressure” as well as his
“red bloodshot eyes” that “were a little glossy”). The officer did not comment on
Majouk’s appearance or demeanor, and the body camera footage discloses
prompt and appropriate responses to the officer’s questions. That said, Majouk
showed signs of impairment on two of the three field sobriety tests. See State v.
Pieper, 432 N.W.2d 701, 704 (citing the defendant’s failure of field sobriety tests
as evidence of driving under the influence). Those signs together with Majouk’s
admission to marijuana consumption two hours earlier amount to substantial
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evidence in support of the district court’s finding of guilt. Cf. State v. Childs, 898
N.W.2d 177, 185 (Iowa 2017) (noting “Childs was driving over the centerline, had
trouble with his balance upon exiting his car, performed poorly on the field tests for
sobriety, and admitted he was under the influence of marijuana after smoking half
a joint”); State v. Hamilton, No. 16-1568, 2017 WL 5185429, at *2 (Iowa Ct. App.
Nov. 8, 2017) (finding sufficient evidence of the under-the-influence element based
on the defendant’s erratic driving, evasion of police, red eyes, unsteadiness on his
feet, slurred speech, and the smell of burnt marijuana on breath); State v. Adams,
No. 02-0523, 2003 WL 22015791, at *1 (Iowa Ct. App. Aug. 27, 2003) (finding
sufficient evidence of operating while under the influence of marijuana based on
“a strong smell of marijuana” in the car, “watery, bloodshot eyes, dilated pupils,
and impaired balance,” erratic driving, and failure of all field sobriety tests). We
affirm the finding of guilt and Majouk’s judgment and sentence.
AFFIRMED.