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IN THE COURT OF APPEALS OF IOWA No. 3-025 / 12-0741 Filed March 13, 2013 STATE OF IOWA, Plaintiff-Appellee, vs. JON ERIC SCANLON, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Cynthia Moisan, Judge.

Jon Scanlon challenges the district court's denial of his motion to suppress. REVERSED.

William G. Brewer and Daniel J. Rothman, of McEnroe, Gotsdiner, Brewer, Steinbach, P.C., West Des Moines, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Joseph Crisp, Assistant County Attorney, for appellee.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

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DANILSON, J. Jon Scanlon appeals the denial of his motion to suppress. Because the officers unreasonably expanded the traffic stop, we reverse. I. Background Facts and Proceedings. On August 19, 2011, Windsor Heights Police Officer Andrew Nissen and his training officer Lieutenant Rupiper initiated a traffic stop for an improper rear lamp on Jon Scanlon's vehicle in the southbound lanes of 73rd Street in Windsor Heights in the vicinity of the entrance and exit ramps to the I-235 freeway. The traffic stop was recorded by the on-board camera of the police car. A review of the camera recording shows the police car's lights were activated before reaching the northern on- and off-ramps for I-235. Scanlon proceeded at a legal speed under I-235 and pulled his car over south of the on- and off-ramps on the south side of I-235. Officer Nissen did not note any suspicious movements

inside the vehicle. Both police officers approached Scanlon's vehicle; Officer Nissen obtained Scanlon's license, insurance, and registration, and the officers returned to the patrol vehicle. The officers' conversation was captured on the car's recording; one officer can be heard saying, "I mean, they didn't do anything, he wasn't moving around." The records check indicated Scanlon had a 2009 drug conviction, and the two officers discussed strategies to elicit consent to search, including calling in K-9 unit. Following the in-car conversation, Officer Nissen asked Scanlon to get out his vehicle to show him the faulty rear light and then the following occurred: Officer Nissen: And then, also, I noticed it took you about two blocks to pull over.

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Scanlon: Yea, and again that was just I didn't want to go off on the underpass. Officer Nissen: No illegal contraband in the vehicle? Scanlon: No. Officer Nissen: What was your drug-related conviction a couple years ago? Scanlon: Growing marijuana. Officer Nissen: Nothing in the vehicle now? Scanlon: No. Officer Nissen: Mind if I look real quick? Scanlon: No, I'd prefer you didn't look. Officer Nissen: Okay here's the deal, you didn't pull over in time you have to pull over like that (snaps his fingers). Scanlon: You gotta understand here when you put your lights on I was coming under an underpass. Officer Nissen: Um, I've been here 2 weeks and I've have had cars pull under there just fine. Scanlon: Okay, well, I'll certainly keep that in mind next time. Officer Nissen: Well, actually I'm going to have you hang tight real quick. And then you don't have anything on your person do ya? Mind if I search ya? (Officer Nissen has Scanlon turn around place his hands behind his back. The officer holds onto Scanlon's hands and pats him down.) Okay, well here's the deal, I'm not threatening you but I'm just going to request a K9 to come walk around your vehicle due to fact that you have a previous drug conviction and you didn't come to stop right away. So that's just the route we're going to go. So you're nervous. I know there's something in there. I wasn't born yesterday. If ya got a little weed I'll kick you loose probably with a citation. I'm assuming that's what you have. Scanlon: Um, yea. Officer Nissen: Where is it at? Scanlon: In my center console. Officer Nissen: Okay, that's probably why you didn't pull over right away? Scanlon: No, not at all. I literally did not pull over because of the underpass, and I'm really freaked out and let me tell you, this girl I'm dating has no idea. Following this exchange, Scanlon was told to stand with Officer Rupiper while Officer Nissen searched his vehicle. At the conclusion of the search, the officers allowed Scanlon's date to drive his car away, and Scanlon was placed under arrest and taken to the Windsor Heights Police Department.

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Scanlon was charged with possession of a controlled substance. He filed a motion to suppress, contending the officer did not have probable cause or reasonable suspicion to detain him or justify the request to search the vehicle and any consent to search was not voluntarily given. He also asserted the

principles set out in a recent supreme court opinion had been violated. At the hearing on the motion, Scanlon's counsel acknowledged the stop for the equipment violation was valid. Defense counsel stated that the "issue we're attacking is whether or not there was reasonable suspicion for the officer to continue in his detainment of Mr. Scanlon for the purpose of conducting a narcotics investigation." Officer Nissen testified that when Scanlon pulled over, "He was very nervous. He had rapid eye movements and he was visibly shaking." Nissen stated this "wasn't your typical reaction." He also stated that in running Scanlon's information through dispatch, "[h]e had previous drug convictions." Officer

Nissen eventually acknowledged that Scanlon had one conviction in 2009, and "besides the one conviction in `09, there [were] no physical signs, symptoms or indicators that specifically there was a narcotics related concern." The district court denied the motion to suppress. It found that Officer Nissen's decision to request to search "was based upon specific and articulable facts, not just a hunch," and in any event, there is nothing "that prevents an officer during a valid, routine traffic stop from asking to search the vehicle." The court found Scanlon "clearly refused to consent." The court found further that "the business related to the traffic stop had been concluded at the time of the

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request to search." Nonetheless, the court concluded the defendant thereafter voluntarily admitted controlled substances were in the vehicle, which provided probable cause for the officer to search the vehicle. Scanlon appeals. II. Scope and Standard of Review. We review constitutional issues de novo. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). "This review requires `an independent evaluation of the totality of the circumstances as shown by the entire record.' The court gives `deference to the factual findings of the district court due to its opportunity to evaluate the credibility of the witnesses, but [is] not bound by such findings.'" Id. (citations omitted). III. Discussion. There is no dispute that Scanlon did not expressly consent to the search.1 At best, Scanlon's statements at the scene could be described as implied consent, but the State insists this is not a consent case and does not aver implied consent. The questions before us are (1) whether the expansion of the traffic stop was reasonable, and if so, (2) whether the defendant's admission of the presence of controlled substance in his vehicle was voluntarily made. We find the first dispositive and, therefore, do not address the second. The Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution provide protection to individuals against

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The Pals case discusses the voluntariness of consent. See 805 N.W.2d at 777-84. The district court and the parties analyzed the defendant's admission using the principles of voluntariness discussed in Pals.

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unreasonable searches and seizures. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). "Warrantless searches and seizures are per se unreasonable

unless the State proves by a preponderance of the evidence that a recognized exception to the warrant requirement applies." State v. Howard, 509 N.W.2d 764, 766 (Iowa 1993). Scanlon argues that Officer Nissen improperly expanded the scope of the initial valid traffic stop. We agree. A traffic stop is more analogous to an investigative detention than a custodial arrest, and the United States Supreme Court and our supreme court treat a traffic stop based on probable cause or reasonable suspicion under the standard set forth in Terry v. Ohio, 392 U.S. 1, 19 (1968). See Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Pals, 805 N.W.2d at 775. "Terry

emphasized that the scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible." Pals, 805 N.W.2d at 775 (internal quotation marks omitted). As a result, under traditional application of the exclusionary rule, "evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation." Id. at 775

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