State of Iowa v. William Arthur Dewitt

IN THE SUPREME COURT OF IOWA
No. 09–0141
Filed March 9, 2012
STATE OF IOWA,
Appellee,
vs.
WILLIAM ARTHUR DEWITT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Mark D.
Cleve, Judge.
Appellant seeks further review of court of appeals decision
affirming his drug convictions by challenging the sufficiency of evidence
and the force used to stop him for questioning. DECISION OF COURT
OF APPEALS AFFIRMED; JUDGMENT AND SENTENCE OF DISTRICT
COURT AFFIRMED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly G.
Cunningham, Assistant County Attorney, for appellee.
2
CADY, Chief Justice.
In this appeal, we must primarily decide if the physical force used
by police to conduct a Terry stop was unreasonable and violative of the
search-and-seizure provisions of our State and Federal Constitutions.
The district court found the force used was not unreasonable, and the
defendant was subsequently convicted of the crimes of possession with
intent to deliver, violation of the drug tax stamp act, and interference
with official acts. We transferred to the court of appeals, and it affirmed
the convictions. On our review, we affirm the decision of the court of
appeals and the judgment and sentence of the district court.
I. Background Facts and Proceedings. 1
On June 5, 2008, officers from the Davenport Police Department
initiated an investigatory encounter with William Arthur DeWitt, initially
based on information provided to them by a confidential informant who
had worked with Davenport police in the past. The source provided a
description of DeWitt and indicated DeWitt planned to sell marijuana at
the Davenport Walmart at approximately 8:30 p.m. on June 5, 2008.
The informant further told police that DeWitt would be driving a gray
Lincoln Town Car with Illinois license plate number A244897. A police
surveillance team was positioned in the Walmart parking lot to await
DeWitt’s arrival. Shortly after 9 p.m., DeWitt drove into the parking lot of
the store in a gray Lincoln Town Car. He parked the car and entered the
store.
Detectives Brian Morel and Daniel Westbay from the police
narcotics division followed DeWitt into the store while the other officers
1The background facts are drawn from testimony presented at trial and at a
hearing on the pretrial motions filed in the case.
3
secured DeWitt’s car in the parking lot. Both detectives were dressed in
plain clothes but had identifying badges hanging around their necks.
The detectives observed DeWitt walking towards the south side of the
store then back to the north entrance where he had initially entered.
Ultimately, DeWitt walked to the hygiene section of the store where the
detectives observed that he “appeared to be looking . . . for somebody.”
The detectives decided to confront DeWitt and take him outside to
his car to talk to him about their suspicion that he was selling drugs.
They approached DeWitt in an aisle, and one or both of the officers took
DeWitt by the arm. 2 Detective Morel pulled out his badge and advised
DeWitt he was a detective and wanted to talk to him outside the store
about a drug investigation. DeWitt claimed neither officer presented an
identification badge. DeWitt immediately resisted the confrontation by
breaking free from their grasp as if he intended to run. The detectives
promptly responded by taking him to the ground and handcuffing him.
DeWitt’s head was injured when it hit the floor during the arrest.
The K–9 unit arrived at the Walmart parking lot to perform a free
air sniff of the Lincoln. The dog signaled that there were drugs in the
vehicle, and a search warrant was subsequently obtained for the vehicle.
Officers discovered a pound of marijuana in the trunk of the car. The
2At trial, Detective Morel testified that Detective Westbay first took hold of
DeWitt’s elbow. He further testified DeWitt attempted to break free from his own grasp
and run past Detective Westbay. At the suppression hearing prior to trial, Detective
Morel testified only to his own action in taking hold of DeWitt’s right arm. Cross-
examination did not explore the discrepancy, and no other part of the record clarifies
the facts. Additionally, the district court did not make a factual finding. Because we
give deference to the district court’s credibility determinations, we find Detective Morel’s
modified statement at the trial indicates the level of force used was generally the
grabbing of DeWitt’s right arm to secure his presence with the officers.
4
State charged DeWitt with possession with intent to deliver, violation of
the drug tax stamp act, and interference with official acts.
DeWitt filed a motion to quash the arrest and a motion to suppress
evidence obtained during the search of his vehicle. DeWitt also filed a
motion to compel disclosure of the identity of the confidential informant.
After an evidentiary hearing, the district court denied the motions. The
court found the detectives had reasonable suspicion DeWitt was involved
in a drug crime at the time of the encounter based on evidence that had
been corroborated independently of the confidential informant’s report as
well as DeWitt’s conduct in the store, including his resistance to the
encounter. The court further determined the facts did not necessitate
the disclosure of the confidential informant’s identity because the
informant was not a participant in or witness to the alleged crimes, and
DeWitt did not otherwise make a sufficient showing that the informant’s
identity would be helpful to his defense to any issue or claim. The case
proceeded to a bench trial, and the district court found DeWitt guilty of
all three counts.
DeWitt appealed and raised four issues. First, he asserted the
officers’ conduct in physically restraining him without particularized
reasonable suspicion that he posed a safety threat was a violation of his
right to be protected from unreasonable seizures under the Fourth
Amendment to the United States Constitution and article I, section 8 of
the Iowa Constitution. Second, he argued the district court erred in
finding sufficient evidence supporting the charge for possession of drugs
with intent to deliver because the court wrongly inferred that he had
knowledge of the drugs in the car he was driving. Third, he asserted
there was insufficient evidence to support the charge of interference with
official acts because neither Detective Morel nor Detective Westbay
5
engaged in an “act which is within the scope of the lawful duty or
authority of that officer.” See Iowa Code § 719.1 (2007). Finally, he
claimed ineffective assistance of trial counsel.
We transferred the case to the court of appeals. The court of
appeals affirmed the district court, specifically finding no constitutional
violation because “the officers took reasonable precautionary actions for
their own protection as well as for the protection of the public.” The
court of appeals also determined the State had presented substantial
evidence to prove DeWitt’s constructive possession of the drugs
independent of the confidential informant’s tip that the drugs were in the
car DeWitt drove to the store. It declined to address the ineffective-
assistance-of-counsel claim. We granted DeWitt’s application for further
review.
II. Standard of Review.
DeWitt requests we review both his constitutional claim that he
was subject to an unreasonable seizure and his claim there was
insufficient evidence in the record to convict him. We review claims the
district court failed to suppress evidence obtained in violation of the
federal and state constitutions de novo. State v. Pals, 805 N.W.2d 767,
771 (Iowa 2011). Claims of insufficient evidence to support a conviction
are reviewed for errors at law. State v. Jorgensen, 758 N.W.2d 830, 834
(Iowa 2008). The court’s findings of guilt are binding if we find they were
supported by substantial evidence. Id. “Evidence is substantial if it
would convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt.” Id.
III. Preservation of Error.
At the outset, the State asserts the issue of reasonable force
permitted under article I, section 8 of our state constitution is not
6
preserved for our review. Although DeWitt raised both the State and
Federal Constitutions in his motions before the district court, the court
did not include separate findings under article I, section 8 from its
findings under the Fourth Amendment. The State argues DeWitt’s
failure to file a motion for enlargement of findings is fatal to his claim
under the Iowa Constitution.
We do not review issues that have not been raised or decided by
the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002). However, when both constitutional provisions are raised by a
party, we may review arguments raised under both constitutions.
Compare King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (noting “[w]hen
there are parallel constitutional provisions in the federal and state
constitutions and a party does not indicate the specific constitutional
basis, we regard both federal and state constitutional claims preserved”).
Even though defendant is seeking reversal of the district court, we may
affirm the district court upon any ground that would properly support
the ruling, as long as it was one raised by the defendant, even if it is not
a ground on which the court based its holding. State v. Maxwell, 743
N.W.2d 185, 192 (Iowa 2008). Thus, in this case, we may review the
claim of unreasonable force under both the State and Federal
Constitutions.
Nevertheless, both parties make arguments using only the federal
constitutional standard for unreasonable seizures. Although we have
discretion to consider a different standard under our state constitution,
neither the State nor DeWitt suggest a different state analysis or offer
any reasons for a separate analysis. See Pals, 805 N.W.2d at 771–72
(holding, even when a party has not proposed a different standard for
interpreting a state constitutional provision, we may apply the standard
7
more stringently than the federal caselaw). We decline to consider a
different state standard under the circumstances and resolve DeWitt’s
state and federal unreasonable seizure claims under the existing federal
standards. State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2009); see also
State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially
concurring) (“In raising a constitutional claim under the state
constitution, counsel should do more than simply cite the correct
provision of the Iowa Constitution. . . . [T]he adjudicative process is best
advanced on reasoned argument which has been vetted though the
adversarial process.”).
IV. Analysis.
A. Suppression of Evidence. DeWitt first argues the court of
appeals erred in finding the police conduct inside the store was
reasonable. He asserts his Fourth Amendment guarantee to be free from
unreasonable seizures was violated because the officers were not
authorized to use physical force to stop him for questioning. DeWitt does
not argue the police had no constitutional basis to stop him. Instead,
DeWitt primarily argues the officers used an unconstitutional method of
carrying out the seizure by immediately grabbing his arm and attempting
to physically remove him from the store for questioning. To resolve this
issue, we must consider the degree of physical force law enforcement
may use in perfecting a stop based on reasonable suspicion.
1. General parameters of Fourth Amendment protection from
unreasonably forceful seizures. The Fourth Amendment “protects people
from unreasonable government intrusions into their legitimate
expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97
S. Ct. 2476, 2481, 53 L. Ed. 2d 538, 546 (1977), abrogated on other
grounds by California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982,
8
1991, 114 L. Ed. 2d 619, 633–34 (1991). Yet, this protection does not
prohibit police from temporarily detaining an individual when they have
reasonable grounds to believe criminal activity is afoot. See Terry v.
Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968);
see also 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.2, at 283 (4th ed. 2004) [hereinafter LaFave]. The
rationale for allowing such a stop on less than probable cause is to allow
police to “confirm or dispel suspicions of criminal activity through
reasonable questioning.” State v. Kreps, 650 N.W.2d 636, 641 (Iowa
2002). Thus, when police temporarily detain an individual pursuant to a
reasonable suspicion of a crime, a “seizure” for purposes of the Fourth
Amendment has occurred, and the seizure must be tested under the
Fourth Amendment for reasonableness. Id. This seizure is commonly
known as a Terry stop.
The right to make an investigatory stop “necessarily carries with it
the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872,
104 L. Ed. 2d 443, 455 (1989). Any use of physical force, however, is
subject to the standard of reasonableness under the Fourth Amendment.
Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d
1, 7–8 (1985) (stating a seizure must be reasonable in “how it is carried
out”). Thus, law enforcement is not prohibited from using physical force
in effecting an investigatory stop, but each seizure must be scrutinized
for reasonableness under the particular circumstances at the time of the
stop. Id. at 8–9, 105 S. Ct. at 1700, 85 L. Ed. 2d at 8.
Several guiding principles for reasonableness of force have been
established over time. First, the test for reasonableness of police conduct
“requires a careful balancing of ‘ “the nature and quality of the intrusion
9
on the individual’s Fourth Amendment interests” ’ against the
countervailing governmental interests at stake.” Graham, 490 U.S. at
396, 109 S. Ct. at 1871, 104 L. Ed. 2d at 455 (quoting Garner, 471 U.S.
at 8, 105 S. Ct. at 1699, 85 L. Ed. 2d at 7). This balancing of interests is
consistent with search-and-seizure analysis in other contexts as the
crucial tenet under the Fourth Amendment. See Michigan v. Summers,
452 U.S. 692, 701 n.12, 101 S. Ct. 2587, 2593 n.12, 69 L. Ed. 2d 340,
348 n.12 (1981). The balance recognizes the importance of both
individual liberty and law enforcement’s duty to preserve their and the
public’s safety.
Second, the Fourth Amendment does not require officers to risk
their lives when encountering a suspect they reasonably believe is armed
and dangerous. United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.
1993). Nor does it “require a policeman who lacks the precise level of
information necessary for probable cause to arrest to simply shrug his
shoulders and allow a crime to occur or a criminal to escape.” Adams v.
Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616
(1972). Thus, the inherent danger surrounding an investigatory stop
may justify more intrusive methods of detaining an individual. See
Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996).
Third, the force used to detain a suspect during an investigatory
stop must be limited to what is necessary to accomplish the goals of the
detention. Thus, the amount of force necessary to investigate the crime
that justified the stop, maintain the status quo, and ensure the officers’
and others’ safety will vary depending on the facts and circumstances of
each case. See United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th
Cir. 1999) (citing United States v. Hensley, 469 U.S. 221, 235–36, 105
S. Ct. 675, 683–84, 83 L. Ed. 2d 604, 616 (1985)). Although not all
10
seizures require probable cause to be reasonable, reasonable suspicion of
criminal activity generally justifies only a narrow deviation from the
Fourth Amendment’s requirement for a warrant. See Florida v. Royer,
460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 237 (1983).
Thus, a seizure justified by reasonable suspicion must be minimally
intrusive, United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637,
2645, 77 L. Ed. 2d 110, 122 (1983), and “[t]he scope of the detention
must be carefully tailored to its underlying justification,” Royer, 460 U.S.
at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d at 238. If an investigative stop is
too long in duration or more invasive than necessary to accomplish the
goals of the investigation, the stop will become a de facto arrest. United
States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d
605, 615 (1985). Of course, an arrest without probable cause is illegal,
and identifying the fine contours between an arrest and an investigatory
detention creates “difficult line-drawing problems.” Id. Despite such
limitations, however, the general trend in federal courts “has led to the
permitting of . . . measures of force more traditionally associated with an
arrest than with investigatory detention.” United States v. Tilmon, 19
F.3d 1221, 1224–25 (7th Cir. 1994). As a result, identical police conduct
can be an arrest under some circumstances and a mere stop in others.
Such difficulty with the doctrinal flexibility of the reasonableness
standard underscores the importance of analyzing the totality of the
circumstances in each case. Garner, 471 U.S. at 8–9, 105 S. Ct. at 1700,
85 L. Ed. 2d at 8.
Finally, the Supreme Court has established one bright-line rule:
the use of deadly force to stop an unarmed, nondangerous suspect is
never constitutionally reasonable. Id. at 11, 105 S. Ct. at 1701, 85
L. Ed. 2d at 9–10. In general, to be reasonable, the force applied must be
11
proportionate to the need for the force raised by the circumstances. Lee
v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002).
Therefore, a stop supported by reasonable suspicion of criminal
activity must be minimally intrusive, but physical force used to detain a
suspect believed to be a threat to safety is reasonable if the force used is
proportional to the threat presented. A suspect does not have the
freedom to walk away from a proper investigatory detention.
2. Application of constitutional standard to facts. DeWitt argues
two violations of his Fourth Amendment rights occurred during the stop.
First, he argues the officers did not have the authority under Terry to
grab his arm with only reasonable suspicion that he was involved in a
drug delivery. He asserts the officers did not have a reasonable belief he
was carrying a weapon and could only assert their authority over him
under the Fourth Amendment by patting him down with a particularized
belief he was carrying a weapon. Second, he argues the officers used
unreasonable force to continue the detention when they tackled him to
the floor.
In determining whether a particular seizure is reasonable, we apply
an objective standard to the facts available to the officer at the time of
the encounter to decide whether the officer was justified in believing a
particular amount of force was necessary to carry out the seizure. Terry,
392 U.S. at 21–22, 88 S. Ct. 1880, 20 L. Ed. 2d at 906. We view the
facts from the perspective of a reasonable officer on the scene, not one
with the illumination of hindsight. Graham, 490 U.S. at 396, 109 S. Ct.
at 1872, 104 L. Ed. 2d at 455–56. Additionally,
[t]he calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense,
12
uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.
Id. at 396–97, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455–56. The extent of
the intrusion is considered first. See Garner, 471 U.S. at 8–9, 105 S. Ct.
at 1700, 85 L. Ed. 2d at 8. We examine the police method and the extent
the person’s liberty was restricted by that method in light of the specific
circumstances justifying the use of such force. Lambert, 98 F.3d at
1185. Some factors that are relevant to proportionality of the force used
include “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. 3 More serious
offenses may justify a greater imposition of force. See Lee, 284 F.3d at
1198. Additionally, an uncooperative suspect who is attempting to flee
justifies the imposition of more force. See Lambert, 98 F.3d at 1189.
The district court found the officers had reasonable grounds to
believe DeWitt was involved in the delivery of illegal drugs. It relied upon
the officers’ experience as narcotics investigators to conclude the officers
had a reasonable belief that DeWitt, as a suspected dealer, posed a risk
of flight and harm to other customers as long as he was in the store.
Although the officers did not initiate a pat down of DeWitt to search for
3Although typically the Fourth Amendment is substantively associated with the
protected interest in privacy from government intrusion, it is also recognized
procedurally as one of two primary sources of a private cause of action for abusive
government conduct. Graham, 490 U.S. at 394, 109 S. Ct. at 1871, 104 L. Ed. 2d at
454; 4 LaFave § 9.2 n.118, at 314. Although excessive force claims are often brought as
civil rights claims under 42 U.S.C. § 1983, the cases are analyzed for a violation of the
claimant’s constitutional rights by balancing the governmental interest against the
individual’s right to be free from invasion. Because the reasonableness-of-force
analysis is most often employed in § 1983 cases alleging an unreasonable seizure under
the Fourth Amendment, we will apply the facts of this case to the standard using these
cases as persuasive authority.
13
weapons, the court found credible the officers’ testimony that they
believed he might run from them and that their subsequent pursuit
could risk harm to other customers in the store. The court, therefore,
found the physical force used to restrain DeWitt, both before and after he
resisted the officers’ detention, was reasonable.
DeWitt asks that we craft a clear rule that officers cannot stop a
person for the purpose of asking questions of the person to determine if
criminal activity is afoot by physically grabbing the person. DeWitt
argues grabbing an individual for whom the police have reasonable
grounds to conduct an investigation is per se unreasonable, especially
when the officers do not have any individualized suspicion that the
individual has a weapon.
At the outset, we reject the adoption of a per se rule prohibiting
police from grabbing the arm of a suspect to stop and briefly detain the
person to obtain an explanation for suspicious circumstances
surrounding the stop. The right to make an investigatory stop
“necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109
S. Ct. at 1872, 104 L. Ed. 2d at 455. Thus, it is necessary to assess
every fact and circumstance of the situation in applying the
constitutional standard of reasonableness. See Scott v. Harris, 550 U.S.
372, 383, 127 S. Ct. 1769, 1777–78, 167 L. Ed. 2d 686, 696 (2007)
(indicating no easy-to-apply legal test exists to determine reasonableness
of force under the Fourth Amendment).
DeWitt’s position that the force used in this case was unreasonable
focuses almost exclusively on his right to personal liberty “ ‘free from
arbitrary interference by law officers.’ ” Maryland v. Wilson, 519 U.S.
408, 411, 117 S. Ct. 882, 885, 137 L. Ed. 2d 41, 46 (1997) (quoting
14
Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54
L. Ed. 2d 331, 336 (1977)). Certainly, a person shopping in a store has a
strong interest in freedom from being approached and grabbed by the
arm by plainclothes police officers prior to the time the police officers
make any inquiry of the person to confirm or deny their reasonable
suspicion of criminal activity. Yet, reasonableness of such an encounter
depends on the balance of the individual right at stake against the public
interest at stake, not just the existence of the individual right.
Additionally, the balance here requires the nature of the competing
interests on each side of the scale to be evaluated.
With respect to the individual right to personal liberty at stake, we
recognize the officers were permitted to stop and detain DeWitt based on
their reasonable suspicion of criminal activity. Thus, a person’s freedom
of movement can be properly curtailed once police have reasonable
suspicion, and in this case, we must consider the degree to which the
initial grab may have further intruded on the right at stake in the
balancing process.
In the context of an automobile stop, the United States Supreme
Court has held that, when police validly stop a vehicle for a traffic
violation, the additional intrusion imposed on the driver when ordered to
step outside the vehicle is only de minimis and the additional intrusion
ordering passengers out of the vehicle is minimal. Wilson, 519 U.S. at
412, 414–15, 117 S. Ct. at 885–86, 137 L. Ed. 2d at 46, 48. Thus,
minimal intrusions that accompany a stop do not necessarily add much
weight to the personal liberty side of the scale. Additionally, while a
person’s arm can be grabbed in a violent and intrusive manner, it can
also be grabbed as a nonthreatening gesture or benign means of
ushering the person to a specific location. A violent grab would
15
constitute a greater intrusion than a grab that serves to usher or direct a
person to a different location. In this case, there was no evidence the
police officers violently grabbed DeWitt’s arm. Thus, in balancing the
personal liberty, the additional intrusion occasioned when police grab the
arm of a person stopped for reasonable suspicion of criminal activity in a
nonviolent manner is minimal.
Furthermore, the additional intrusion that would result from
moving a Terry stop from inside a store into the parking lot of the store
would be minimal, much like the de minimis intrusion of asking a
motorist to step outside his or her vehicle during a traffic stop. Mimms,
434 U.S. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337. In this case,
DeWitt had just parked his vehicle in the parking lot of the store, and the
police were only requesting that he return to that location for
questioning. In Terry, the police officer who made the stop not only
grabbed the defendant at the point of the stop on a sidewalk, but he also
then ordered him and his two accomplices from the sidewalk into an
adjacent store. 392 U.S. at 7, 88 S. Ct. at 1872, 20 L. Ed. 2d at 897. We
conclude the intrusion imposed on DeWitt up to the point in time when
the officers grabbed his arm to usher him outside the store was minimal.
On the other side of the balance, the State asserts two primary
public interests supported the police officers’ actions in grabbing
DeWitt’s arm. In particular, officer safety was a weighty concern, as was
the general safety of the other customers in the store. The suspected
criminal activity involved drug dealing, which is a serious crime for
which offenders often run from the police. Drug dealers are also
generally known to carry weapons, which the police officers in this case
indicated was a concern. See Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20
L. Ed. 2d at 909 (recognizing an officer “need not be absolutely certain
16
that the individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his
safety or that of others was in danger”); see also Navarrete-Barron, 192
F.3d at 791 (recognizing officers did not use unreasonable force when
approaching stopped suspected drug dealer’s vehicle with weapons
drawn because drug trafficking “often is accompanied by dangerous
weapons”); United States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987)
(holding police were justified in frisking narcotics suspect because
weapons are “part and parcel for the drug trade”); United States v. Post,
607 F.2d 847, 851 (9th Cir. 1979) (holding it is not unreasonable to
believe a narcotics dealer might be armed); Carmouche v. State, 10
S.W.3d 323, 330 (Tex. Crim. App. 2000) (concluding an officer’s belief a
suspect is armed and dangerous may be predicated on the nature of the
suspected criminal activity). But see Upshur v. United States, 716 A.2d
981, 984 (D.C. 1998) (“Although we have recognized that ‘drugs and
weapons go together,’ that connection standing alone is insufficient to
warrant a police officer’s reasonable belief that a suspect is armed and
dangerous, and we have never so held.” (quoting Griffin v. United States,
618 A.2d 114, 124 (D.C. 1992))).
We reject DeWitt’s claim that police needed an individualized belief
he was carrying a weapon rather than acting on general knowledge that
most drug dealers carry weapons to make deliveries. Although the
detectives did not know for sure whether DeWitt carried a weapon, their
prior experience in narcotics investigations caused them to believe he
could be a volatile suspect and the investigation would most safely be
conducted outside the store. It is not our task to second-guess the
detectives’ assessment of DeWitt as dangerous or volatile based on the
crime he was suspected of and his conduct leading up to the stop. See
17
Sharpe, 470 U.S. at 686, 105 S. Ct. at 1575, 84 L. Ed. 2d at 616 (noting
courts should “take care to consider whether the police are acting in a
swiftly developing situation, and in such cases the court should not
indulge in unrealistic second-guessing”).
On balance, the police conduct up to the point of stopping DeWitt
and taking hold of his arm was reasonable. The interests of the State
were superior to the liberty interests of DeWitt. Accordingly, we hold the
police officers did not violate the search-and-seizure clause of our State
and Federal Constitutions when they made a Terry stop for suspected
drug dealing, in a store occupied by customers and employees, by
grabbing DeWitt by the arm for the purpose of escorting him outside the
store to obtain an explanation for the suspicious circumstances. We
next turn to consider all the circumstances to determine if excessive
force was used when police took DeWitt to the ground and placed
handcuffs on him.
The interests of the State that justified the police action in
grabbing DeWitt’s arm for the purpose of escorting him to the parking lot
continue to be relevant in determining if police were justified in tackling
him and placing him in handcuffs. Of course, the intrusion of DeWitt’s
personal liberty was substantially impacted by the aggressive police
actions. This intrusion added greater weight to the personal liberty side
of the scale, and we must consider whether the additional circumstances
added any weight to the public interest side of the scale.
Generally, physical force to detain a suspect is reasonable when
the suspect refuses to stop when ordered to do so. See United States v.
Weaver, 8 F.3d 1240, 1244 (7th Cir. 1993) (holding that tackling of
suspect was not excessive when suspect took evasive action immediately
upon encountering police, broke free and ran after officer grabbed his
18
jacket, and ignored officer’s requests to stop); Tom v. Voida, 963 F.2d
952, 957–58 (7th Cir. 1992) (concluding forcible detention was
reasonable because suspect’s own evasive actions create the need for
those steps). In this case, the fear the two officers had that justified
grabbing DeWitt’s arm—fear of flight when approached—quickly
transformed into reality. Additionally, the officers feared he may be
armed with a weapon and become a serious danger to others in the store.
Consequently, the State’s interests were quickly elevated, and these
heightened interests justified a quick response by police. In the split
second the officers were given to respond when DeWitt broke free from
their grasp, they decided to further detain him by taking him to the
ground rather than allowing him to run out of a crowded store and into
the parking lot. See Graham, 490 U.S. at 397, 109 S. Ct. at 1872, 104
L. Ed. 2d at 456 (recognizing reasonableness must take into account that
“police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving”).
As a result, we find the officers’ conduct in tackling DeWitt and
placing him in handcuffs was objectively reasonable. The attempt to flee
justified the additional force. We conclude the seizure was reasonable
under the circumstances.
B. Sufficiency of Evidence.
1. Possession with intent to deliver. The district court convicted
DeWitt of possessing marijuana with the intent to deliver it in violation of
Iowa Code section 124.401. Under the statute, the State must prove the
defendant “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material
19
was a narcotic.” 4 Maxwell, 743 N.W.2d at 193. The location in which
the substance is found guides our determination of possession. In this
case, marijuana was discovered in the vehicle DeWitt drove rather than
on DeWitt’s person. As a result, the State had to prove DeWitt was in
constructive, as opposed to actual, possession of the marijuana in the
car. See id. Our standard for proof of constructive possession requires
the State to show the defendant had knowledge of the controlled
substance as well as the authority or right to control it. Id.
In State v. Reeves, we said:
If the premises on which such substances are found are in
the exclusive possession of the accused, knowledge of their
presence on such premises coupled with his ability to
maintain control over such substances may be inferred.
Although no further proof of knowledge by the State is
required in cases of exclusive possession by the accused the
inference of knowledge is rebuttable and not conclusive. But
where the accused has not been in exclusive possession of
the premises but only in joint possession, knowledge of the
presence of the substances on the premises and the ability
4In its brief, the State argues the definition provided in Black’s Law Dictionary
for “dominion” implies a defendant must have both title and possession in the
contraband. Viewing a “real proprietary interest . . . in contraband” as impossible, Long
v. United States, 623 A.2d 1144, 1148 (D.C. Cir. 1993), the State invites this court to
disavow the requirement of dominion and instead focus upon the issue of control. In
prior cases, we have indicated evidence resembling a proprietary interest may be
necessary for a finding of constructive possession, although we emphasized that “an
immediate right to control” distinguished cases when constructive possession should be
found from cases when the defendant had a “raw physical ability to exercise control
over the controlled substance.” State v. Bash, 670 N.W.2d 135, 138–39 (Iowa 2003);
accord State v. Atkinson, 620 N.W.2d 1, 5 (Iowa 2000) (“While it seems anomalous to
look at a defendant’s ‘right’ to control illegal drugs in order to establish possession, that
concept basically distinguishes a defendant’s raw physical ability to exercise control
over contraband simply because of the defendant’s proximity to it and the type of rights
that can be considered constructive possession.”). In both cases, the drugs at issue
were located within the personal property of a person other than the defendant. See
Bash, 670 N.W.2d at 136–37 (marijuana located in defendant’s husband’s cardboard
box); see also Atkinson, 620 N.W.2d at 2–3 (methamphetamine located in another
person’s fanny pack). DeWitt does not argue he lacked title in the contraband. Thus,
we need not reach the issue of the exact meaning and significance of “dominion” in this
appeal.
20
to maintain control over them by the accused will not be
inferred but must be established by proof.
209 N.W.2d 18, 23 (Iowa 1973). Thus, possession may be inferred if the
defendant is in exclusive possession of the premises in which the
contraband was located. Vehicles, however, alter the exclusive
possession rule because of its modern role as a shared accommodation.
We will not recognize an inference creating a rebuttable presumption of
possession involving vehicles when it has been established that multiple
individuals had equal access to the vehicle. State v. Kemp, 688 N.W.2d
785, 788 (Iowa 2004). When there is joint control, we require additional
evidence to connect the defendant to the controlled substance sufficient
to support a conviction for possession. Id.
In this case, the uncontested evidence showed five other
individuals besides DeWitt had access to the Lincoln Town Car in
addition to a sixth key under the front license plate of the vehicle.
Because DeWitt was not in exclusive control of the vehicle, sufficient
evidence must exist that he had knowledge of the marijuana in the car
and had the ability to maintain control over it. Id. at 789; see also
Maxwell, 743 N.W.2d at 194 (finding insufficient evidence that defendant
was in exclusive possession of car he was driving when defendant did not
own it). Joint control cannot create a rebuttable presumption of
possession as can facts showing exclusive control of the vehicle.
However, a determination of constructive possession still requires we
draw some inferences based on the facts of the case. Maxwell, 743
N.W.2d at 193. We have established several factors as guides in
establishing proof of possession. These factors include:
(1) incriminating statements made by the person; (2)
incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s fingerprints on
21
the packages containing the controlled substance; and (4)
any other circumstances linking the person to the controlled
substance. Further, when the premises is a vehicle, the
court may also consider these additional factors: (1) was the
contraband in plain view; (2) was it with the person’s
personal effects; (3) was it found on the same side of the car
or immediately next to the person; (4) was the person the
owner of the vehicle; and (5) was there suspicious activity by
the person.
Id. at 194 (citation omitted). The factors are not exclusive, and all facts
and circumstances are considered to determine whether a reasonable
inference is created that the defendant had knowledge and control over
controlled substances. Id.
DeWitt correctly points out that none of the “specific factors” from
Maxwell are expressly met. He made no incriminating statements. He
was not present when the police discovered the marijuana, and he
accordingly made no incriminating actions. DeWitt’s fingerprints were
not on the marijuana or its packaging. Additionally, the marijuana was
located in the trunk of the car and not in plain view. The marijuana was
not found with DeWitt’s personal effects. Because the marijuana was
found in the trunk of the car, it was not found on DeWitt’s side of the car
or immediately next to him. Finally, DeWitt does not own the vehicle; his
father does.
DeWitt argues the court of appeals erred by applying a “catchall”
factor to conclude the facts and circumstances of the case provided
sufficient evidence of possession. He further argues that “factors that
are dredged up under the catchalls should be connected to at least one of
the specific factors [articulated in Maxwell].” As we have said before, the
factors for determining constructive possession are not exclusive. See id.
However, any relevant facts and circumstances that are considered in
addition to the specific factors, whether it is circumstantial or direct
evidence of the crime, must be sufficient to raise a fair inference of guilt.
22
State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). The evidence of
guilt must generate more than suspicion, speculation, or conjecture. Id.
Thus, we turn to consider the accompanying circumstances.
DeWitt was the most recent driver of the car. This circumstance is
relevant to the constructive possession analysis, even if it does not
amount to exclusive possession entitling the State to the inference
discussed in Reeves. See Maxwell, 743 N.W.2d at 194. DeWitt was also
a frequent driver of the car: he drove it six days a week for work and was
evidently planning to drive it to a fishing expedition with a friend. While
DeWitt and his father testified that persons other than DeWitt had
access to the vehicle and may have occasionally operated it, DeWitt’s
frequent and recent use of the car remains pertinent, though not
dispositive. Cf. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003)
(“[P]roximity to the drugs, though pertinent, is not enough to show
control and dominion.”).
The State also produced evidence that DeWitt exhibited
“suspicious activity.” DeWitt drove out of his way to come to the Iowa
Walmart when he needed to be at work soon in Illinois. Although he
claimed this was done as a favor to a friend, he could not remember the
friend’s name. The State also produced evidence that once he arrived,
DeWitt paced the main aisle, “looking around as if he was attempting to
meet somebody.” Although DeWitt testified he went to Walmart to
procure fishing equipment, he never approached the fishing aisle. See
United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988) (noting a
defendant’s explanation for conduct that is “so inherently implausible as
to justify the inference that it was largely fabricated . . . is ‘part of the
overall circumstantial evidence from which possession and knowledge
may be inferred’ ” (quoting United States v. Phillips, 496 F.2d 1395, 1398
23
n.6 (5th Cir. 1974))). Indeed, credibility determinations are an essential
function of the fact finder. In this case, the district court found DeWitt’s
reasons for being inside the Walmart not credible.
Moreover, DeWitt’s resistance of Detectives Morel and Westbay
provides important evidence of conduct consistent with guilt. See
Maxwell, 743 N.W.2d at 194 (holding that the fact that defendant
“continued [to drive] for approximately one-hundred feet until pulling
into the driveway of his residence” supported a finding of constructive
possession); Carter, 696 N.W.2d at 40 (observing that failure to stop
immediately is suspicious activity). Of course, not all responses to police
conduct support inferences of knowledge and possession. See Royer,
460 U.S. at 498, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236 (holding that,
although a police officer is free to question or approach a suspect without
grounds for a stop, the suspect’s choice to walk away and not listen to
the officer “does not, without more, furnish those grounds”). On the
other hand, unreasonable behavior can be relevant. See Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570,
576 (2000) (“Headlong flight—wherever it occurs—is the consummate act
of evasion: It is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such.”). In this case, we have found the officers’
conduct in taking DeWitt by the arm to conduct their investigation
outside the store was reasonable. Detective Morel stated that he wanted
to ask DeWitt some questions outside about a drug investigation prior to
DeWitt attempting to break away from the officers. The officers
interpreted this reaction as attempted flight. Thus, DeWitt’s reaction in
attempting to break away and flee caused increased suspicion and
further evidence DeWitt was involved with the drug delivery they
suspected before approaching him.
24
Finally, we turn to the testimony at trial by Detective Gilbert
Proehl, the detective leading the unit, and Detective Morel indicating they
received information from a confidential source that DeWitt was planning
to make a drug delivery at Walmart and that the information they
received was corroborated by the circumstances they observed when
DeWitt arrived at the store. The State did not call the confidential
informant as a witness at trial, and DeWitt claims the testimony of the
officers cannot be considered in determining constructive possession
because it was hearsay. DeWitt also claims there is insufficient evidence
of constructive possession without the background evidence from the
confidential informant that he intended to sell drugs at the store rather
than purchase fishing equipment.
At trial, DeWitt objected to the testimony of Detective Proehl as
hearsay. The district court sustained the objection, but permitted
Detective Proehl to generally testify that he received information from a
confidential source to explain the reason police went to Walmart. See
Iowa R. Evid. 5.801(c) (defining “hearsay” as a statement offered to prove
the truth of the matter asserted, which excludes statements offered to
explain conduct); see also State v. Mitchell, 450 N.W.2d 828, 832 (Iowa
1990) (noting that a statement is not hearsay if it is offered only to
explain responsive conduct of the listener). This information was
relevant to show why the detectives approached DeWitt in the store
rather than another customer displaying similar behavior. Mitchell, 450
N.W.2d at 832 (recognizing if nonhearsay statements are used to prove
responsive conduct, such conduct must be relevant to some aspect of
State’s case). Detective Morel then testified about the specific
information provided by the confidential informant without objection by
DeWitt. Tamm, Inc. v. Pildis, 249 N.W.2d 823, 834 (Iowa 1976) (“[T]he
25
proper rule to be adhered to in this state is that when hearsay evidence
which would be objectionable and incompetent when properly objected to
is admitted without objection and is relevant and material to an issue[,] it
is to be considered and given its natural probative effect as if it were in
law competent evidence. Its weight is to be determined by the trier of
fact by the same criteria as is employed in considering other competent
evidence.”). Consequently, the evidence was properly considered by the
district court and is properly considered for the purpose of determining
the sufficiency of the evidence supporting constructive possession.
Our review of substantial evidence to support a judgment for
conviction requires that we “ ‘view the “evidence in the light most
favorable to the State, including legitimate inferences and presumptions
that may fairly and reasonable be deduced from the record evidence.” ’ ”
Carter, 696 N.W.2d at 36 (quoting State v. Quinn, 691 N.W.2d 403, 407
(Iowa 2005)). Under the facts and circumstances of this case, we find the
evidence was sufficient to support DeWitt’s conviction. 5
5The State also argues that knowledge of the marijuana may be inferred based
on its value. Courts take differing approaches on this point. Compare Commonwealth
v. Garcia, 569 N.E.2d 385, 392 (Mass. 1991) (holding that the value of cocaine located
in the trunk of a car in joint possession was irrelevant to the element of possession),
with United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986) (holding that the
high value of drugs in a vehicle supported knowing possession because “it is unlikely
that the owner of the truck, or anyone else, would have left such a valuable substance
in the truck”). In Garcia, the Supreme Judicial Court of Massachusetts considered an
argument similar to the one the State puts forth here and said:
The Commonwealth contends that an additional factor pointing to
knowledge can be found in the fact that the cocaine was extremely
valuable. The Commonwealth argues that it is unlikely that anyone
would lend a vehicle containing such valuable contents unless the
borrowers knew of those contents, and that therefore a jury could infer
that both Heredia and Garcia knew of the cocaine. This argument is
simply another way of stating that one can infer knowledge of
contraband from its presence in a vehicle.
569 N.E.2d at 392. We find the approach taken by Massachusetts more persuasive.
Allowing the value of the drugs to support an inference of knowing possession risks
26
V. Conclusion.
After considering all issues raised on appeal, 6 we affirm the
decision of the court of appeals and judgment and conviction of the
district court.
DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT
AND SENTENCE OF DISTRICT COURT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.
____________________________
collapsing the inquiry to one of proximity. Proximity is insufficient to support an
inference of knowledge and control in Iowa. See Atkinson, 620 N.W.2d at 3.
6The court of appeals decision stands as the final decision with respect to the
remaining two sufficiency-of-evidence claims as well as the ineffective-assistance-of-
counsel claim. See State v. Johnson, 784 N.W.2d 192, 193 n.1 (Iowa 2010).