Preview:

IN THE COURT OF APPEALS OF IOWA No. 2-401 / 11-1410 Filed June 27, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. TREVOR JEROME ABBEY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge, (motion to suppress and sentencing) and Joe E. Smith, Judge (trial).

Trevor Abbey appeals from the judgment and sentence entered following a verdict finding him guilty of driving while revoked; he contends the district court erred in denying his motion to suppress evidence. AFFIRMED.

Michael B. Oliver of Oliver Law Firm, P.C., Windsor Heights, for appellant. Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, John P. Sarcone, County Attorney, and Shannon Archer, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ.

2 POTTERFIELD, J. Trevor Abbey appeals from the judgment and sentence entered following a verdict finding him guilty of driving while revoked. He contends the evidence against him was obtained in violation of his rights under the Iowa and United States Constitutions. Upon our de novo review, we find the Iowa constitutional claim was not preserved, and that no Fourth Amendment violation occurred as reasonable suspicion existed for the stop. I. Background Facts and Proceedings On March 12, 2011, at around six o'clock in the evening, Trevor Abbey was seated in the driver's seat of a parked car with the engine running in a higher crime area of Des Moines known for narcotics activity. Two law enforcement officers patrolling the area watched as a group of three or four women walked up to the car, spoke with Abbey, and walked away. The officers pulled their cruiser behind Abbey's car without activating their lights or siren. The cruiser left an exit available for Abbey's car. Abbey turned off his engine upon their approach. The officers walked to the passenger side of Abbey's vehicle and had a brief conversation with him. Abbey's pants was down. The officers requested Abbey step out of the car and speak further with them. Abbey complied and also agreed to their request to produce his license. During this conversation the officers dispelled suspicion about Abbe y's unzipped pants. They also ran Abbey's driver's license through the LENCIR system, found his license was revoked, and arrested him. During this conversation they noticed the zipper on

3 Abbey filed a motion to suppress evidence of the license revocation, asserting it was the fruit of an improper seizure in violation of his constitutional rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Iowa constitution. The district court denied the motion, finding no seizure by the officers and that Abbey "freely chose to speak with the officers and answer their questions including his identity[.]" Abbey filed a motion to

reconsider under the Fourth Amendment arguing the seizure occurred when he was asked to get out of his car. The court denied the motion. Abbey stipulated to a trial on the minutes of testimony, and the court entered a guilty verdict. He was sentenced to a fine of $1000. Abbey appeals, arguing the district court erred in denying his motion to suppress. II. Standard of Review We review constitutional claims de novo. State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). This review requires an independent evaluation of the totality of the circumstances shown by the record as a whole. State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007). We give deference to the district court's findings of fact and credibility determinations, but are not bound by such findings. Id. III. Analysis A. Preservation of Iowa Constitutional Claim While Abbey brings his claim under both the Iowa and United States Constitutions, the State contends the Iowa constitutional claim is not preserved for appeal. We agree. An issue will be reviewed on appeal only after it has been presented to and ruled upon by the district court. State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008).

4 Here, Abbey brought claims under both constitutions in his motion to suppress. In its ruling, the district court addressed the motion only under the Fourth Amendment. In his motion to reconsider, Abbey solely addressed the Fourth Amendment, not the Iowa constitutional claim. Because the district court never ruled on the Iowa constitutional claim, it cannot now be raised on appeal. Therefore, we address only the Fourth Amendment issue on appeal. B. Unlawful Seizure Abbey contends the police action prior to his arrest constituted an unreasonable seizure. Whether a seizure occurred is determined by the totality of the circumstances. The Supreme Court has long recognized that not all police contacts with individuals are deemed seizures within the meaning of the Fourth Amendment. Encounters with the police remain consensual [s]o long as a reasonable person would feel free to disregard the police and go about his business. Generally, police questioning, and the responses it elicits, does not constitute a seizure. For a seizure to occur, there must be objective indices of police coercion. The fact that an officer . . . is in uniform has been given little weight to the analysis. In order to maintain the consensual nature of the encounter, there should be no show of authority, no intimidation, and no use of physical force by the officers in their encounter. State v. Lowe, ____ N.W.2d ____, 2012 WL 163027, at *8 (Iowa 2012) (internal citations and quotation marks omitted). The Supreme Court has stated that

examples of coercion triggering Fourth Amendment protections include the "threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554 (1980). The

5 absence of sirens or emergency lights by officers in a police vehicle and the availability of an exit weigh against coercion. State v. Wilkes, 756 N.W.2d 838, 842

Download STATE OF IOWA, Plaintiff-Appellee, vs. TREVOR JEROME ABBEY, Defendant-Appellant.

Iowa Law