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IN THE COURT OF APPEALS OF IOWA No. 8-761 / 07-1740 Filed December 17, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. KRISTOPHER MARTIN HANSEN, Defendant-Appellant. ______________________________________________________________ Appeal from the Iowa District Court for Scott County, Mark J. Smith (motion to suppress), Mary E. Howes (trial), Judges.

Defendant appeals his conviction for failure to affix a drug tax stamp. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, William E. Davis, County Attorney, and Meredith Friedman, Legal Intern, for appellee.

Considered by Vogel, P.J., and Eisenhauer, J., and Robinson, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 ROBINSON, S.J. I. Background Facts & Proceedings

On May 21, 2007, at about 5:30 p.m., Davenport Police Officers Scott Fuller and Robert Bytnar were driving in a marked police van on Locust Street, a heavily traveled street in Davenport, Iowa. They noticed cars were slowing down or stopping in front of them, and then saw Kristopher Hansen standing in the middle of the four-lane road. Hansen was talking to a man on the sidewalk, and did not appear to be paying attention to the traffic problems he was creating. One of the officers told Hansen to remove himself from the flow of traffic. Hansen replied, "I'm getting the f*** out of the street, okay." The man Hansen had been talking to ran away. The officers believed Hansen had committed disorderly conduct, in violation of Iowa Code section 723.4(7) (2007), which prohibits the obstruction of "any street, sidewalk, highway, or other public way, with the intent to prevent or hinder its lawful use by others." The officers stopped Hansen, who by then had reached the sidewalk, and arrested him. The officers performed a search

incident to arrest and found 79.2 grams of marijuana in Hansen's pants pocke t. There was no drug tax stamp on the marijuana. Hansen was charged with possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and disorderly conduct. He filed a motion to suppress, claiming he had not committed a public offense and officers did not have justification to perform a warrantless search. The district court

denied the motion to suppress. The court found "the officers did have probable

3 cause to believe that the Defendant was committing the offense of Disorderly Conduct for impeding or stopping traffic in violation of Iowa Code section 723.4(7)." The court concluded the officers properly conducted a search incident to arrest. Hansen waived his right to a jury trial, and the case proceeded to a trial to the court based on the minutes of testimony. The State then agreed to dismiss the charges of possession of a controlled substance with intent to deliver and disorderly conduct. The court found Hansen guilty of failure to affix a drug tax stamp, in violation of section 453B.12. Hansen was sentenced to a period of imprisonment not to exceed five years. He appeals his conviction. II. Motion to Suppress

Hansen contends the district court erred by denying his motion to suppress. He asserts that he was not engaged in criminal activity at the time of the stop. Hansen claims he was properly crossing the street when he was

accosted by the police officers. He asserts that under Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 907 (1968), the officers had no reasonable cause to conduct a pat down search. Hansen posits he was stopped solely because he used foul language to the officers. The Fourth Amendment guarantees citizens the right to be free from unreasonable searches and seizures. State v. McGrane, 733 N.W.2d 671, 676 (Iowa 2007). Because this case raises a constitutional issue, our review is de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). We independently

4 evaluate the defendant's claims under the totality of the circumstances. McGrane, 733 N.W.2d at 675. Police officers may engage in the warrantless search of a person if the search is made incident to arrest. State v. Griffin, 691 N.W.2d 734, 736 (Iowa 2005). Under section 804.7(1), a police officer may arrest a person without a warrant "for a public offense committed or attempted in the peace officer's presence." See Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 770 (Iowa 2002). An offense "which is prohibited by statute and is punishable by fine or imprisonment" is a public offense.1 Iowa Code

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