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IN THE COURT OF APPEALS OF IOWA No. 2-231 / 11-1065 Filed May 9, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. TOMMY TYLER JR., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge (suppression hearing) and Scott D. Rosenberg (trial), Judge.

Defendant appeals from his conviction for operating while intoxicated asserting the district court erred in not granting his motion to suppress based on a lack of probable cause to justify the traffic stop. AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and David Porter, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

2 VOGEL, P.J. Defendant, Tommy Tyler Jr., appeals from his conviction for operating a motor vehicle while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2009). Tyler contends the district court should have suppressed the evidence obtained following the traffic stop of his vehicle because the police officer did not have probable cause to justify the stop. Upon our review of the record, we affirm Tyler's conviction. I. BACKGROUND AND PROCEEDINGS. In the early morning hours of October 13, 2010, Officer Lowe was on duty in his marked police vehicle located in the parking lot of a car wash. Lowe observed a vehicle, driven by Tyler, execute a turn and saw what appeared to be a tinted license plate cover on the front license plate of Tyler's vehicl e, which obstructed Lowe's view of the plate. Lowe pulled his vehicle behind Tyler's and observed the back license plate also had a cover over it which caused the plate to be obstructed or blurred. Lowe initiated a traffic stop and as the vehicles came to a stop, Lowe was able to read out Tyler's license plate to dispatch. Lowe informed Tyler the reason for the stop was the obstructing license plate covers. Lowe smelled alcohol coming from Tyler and inquired whether Tyler had been drinking. Tyler initially admitted to drinking two beers and then claimed he had not been drinking at all. Lowe summoned Officer Hanssen to the scene to conduct field sobriety tests, which Tyler failed. A subsequent

breathalyzer test indicated Tyler had a blood alcohol content of .147. Tyler was charged on November 9, 2010, with operating a motor vehicle while under the influence of alcohol, second offense. Tyler filed a motion to

3 suppress all evidence following the stop of his vehicle claiming the officer did not have probable cause to believe a traffic violation had been committed. At the suppression hearing, Officer Lowe testified as to the details of his observations and the stop. Tyler also testified and offered testimony from Donna Irvin, a friend who was driving just ahead of Tyler on the night in question in a vehicle with the same license plate covers, and Delbert King, a private investigator who performed a re-creation of the night in question and concluded Tyler's license plates were at all times visible and unobstructed. On February 8, 2011, the district court denied Tyler's motion to suppress finding each of the obscured plates would constitute a violation of Iowa Code section 321.37(3) 1 and this provided Officer Lowe with reasonable grounds to stop Tyler's vehicle. The case proceeded to a bench trial on May 6, 2011, and the district court found Tyler guilty as charged. Tyler was sentenced on June 17, 2011, to a twoyear term of incarceration, with all but seven days suspended. Tyler was placed on probation for two years, and ordered to pay a fine of $1850. Tyler appeals claiming the district court erred in denying his motion to suppress. II. SCOPE OF REVIEW. As Tyler claims his constitutional rights were violated when the officer stopped his vehicle without probable cause, our review is de novo. Louwrens, 792 N.W.2d 649, 651 (Iowa 2010). State v.

We conduct an independent

evaluation of the totality of the circumstances as shown in the entire record,

1

Iowa Code section 321.37(3) provides: "It is unlawful for the owner of a vehicle to place any frame around or over the registration plate which does not permit full view of all numerals and letters printed on the registration plate."

4 giving deference to the trial court's findings regarding the credibility of witnesses. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). III. MOTION TO SUPPRESS. Tyler claims this case boils down to two choices, either: (1) his vehicle had a tinted license plate cover that obstructed its view, in which case the officer had probable cause to initiate the traffic stop; or (2) his vehicle did not have a tinted cover, in which case the officer had no valid reason to stop his vehicle. He asserts because the overwhelming evidence in the record establishes his vehicle did not have a tinted license plate cover, the State cannot meet its burden to prove the stop was constitutional.2 The Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa constitution provide protection to individuals against unreasonable searches and seizures. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). Generally a search or seizure must be conducted pursuant to a warrant in order to comply with these constitutional provisions, unless an exception applies. Louwrens, 792 N.W.2d at 651. One such exception permits police officers to stop a vehicle when the officer observes a traffic violation, no matter how minor. Tague, 676 N.W.2d at 201. The burden is on the State to

2

Tyler asserts to the extent his claim is not sustained by the federal constitution, we ought to grant him relief under the Iowa constitution, citing the supreme court's statement in State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) that "we jealously protect this court's authority to follow an independent approach under our state constitution." While we do reserve the right to interpret article I, section 8 of the Iowa constitution differently from the Fourth Amendment of the United States Constitution, Tyler has not asserted how the state constitutional provision should be interpreted differently from its federal counterpart. We will therefore interpret the provisions simultaneously. Pals, 805 N.W.2d at 772.

5 prove by a preponderance of the evidence that the officer had probable cause3 to stop the vehicle. Louwrens, 792 N.W.2d at 651. "Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it." Tague, 676 N.W.2d at 201. If the State fails to sustain its burden, the evidence obtained as a result of the stop must be suppressed. Louwrens, 792 N.W.2d at 651

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