STATE OF IOWA, Plaintiff-Appellee, vs. JEFFERY LEE BROCK, II, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-599 / 06-1614
Filed October 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFERY LEE BROCK, II,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Gary D.
McKenrick, Judge.
Jeffery Brock, II, appeals from his conviction for operating while
intoxicated. AFFIRMED.
Charles Hallberg of Hallberg, Jacobsen, Johnson & Viner, Cedar Rapids,
for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Phil Tabor, County Attorney, and Nick Scott, Assistant County Attorney,
for appellee.
Considered by Huitink, P.J., and Vogel and Baker, JJ.
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BAKER, J.
Jeffery Brock, II, appeals from his conviction for operating while
intoxicated (OWI) in violation of Iowa Code section 321J.2 (2005). He contends
the court erred in denying his motion to suppress. We affirm.
Background Facts and Proceedings.
At approximately 2:00 a.m. on March 25, 2005, Jackson County Deputy
Sheriff Kevin Scott received a dispatch concerning a suspicious vehicle and the
possible theft of gas from a residence approximately four miles north of the town
of Miles. After responding to the home in question and finding no suspect at the
scene, Deputy Scott left the call and traveled toward Miles. Upon reaching Miles
about five minutes later, he observed a vehicle with an illuminated dome light
parked in the lot of the Swanton Ag Service Building. He immediately saw the
driver of the vehicle quickly grab the steering wheel, reach for the gear shift, and
put the car in gear. Deputy Scott slowed down and made a u-turn so he could
follow the vehicle, which by then was being driven in the opposite direction.
About a half mile north of Miles, he stopped the vehicle, which was being driven
by Jeffery Brock. Brock’s eventual conviction for OWI ensued.
Scope of Review.
On appeal, Brock maintains the court erred in denying his motion to
suppress in which he argued Deputy Scott lacked sufficient cause to stop his
vehicle. Because Brock’s argument as to the propriety of the stop involves a
constitutional right, we must make “an independent evaluation of the totality of
the circumstances as shown by the entire record.” State v. Cook, 530 N.W.2d
728, 731 (Iowa 1995). “We give deference to the district court’s fact findings due
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to its opportunity to assess the credibility of witnesses, but we are not bound by
those findings.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
Fourth Amendment.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or Affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend. IV.
Evidence obtained in violation of this provision is
inadmissible in a prosecution. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa
1995). The Fourth Amendment requires a police officer have reasonable cause
to stop an individual for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88
S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). To meet the reasonable cause
standard a police officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch. State v. Haviland, 532 N.W.2d 767, 768
(Iowa 1995). “An investigatory stop is considered a seizure within the meaning of
the Fourth Amendment and must be ‘supported by reasonable suspicion to
believe that criminal activity may be afoot.’” United States v. Ameling, 328 F.3d
443, 447 (8th Cir. 2003).
A reviewing court must look at the totality of the circumstances of
each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing. In forming a
basis for suspicion, officers may draw on their own experience and
specialized training to make inferences from and deductions about
the cumulative information available to them that might well elude
an untrained person. While an officer’s reliance on a mere hunch is
insufficient to justify a stop, the likelihood of criminal activity need
not rise to the level required for probable cause, and it falls
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considerably short of satisfying a preponderance of the evidence
standard.
Id. (citations and quotations omitted).
“The principal function of an investigatory stop is to resolve the ambiguity
as to whether criminal activity is afoot.” State v. Richardson, 501 N.W.2d 495,
497 (Iowa 1993). “The purpose of an investigatory stop is to allow a police officer
to confirm or dispel suspicions of criminal activity through reasonable
questioning.” State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). “Seemingly
innocent activities may combine with other factors to give an experienced police
officer reasonable grounds to suspect wrongdoing.”
State v. Bradford, 620
N.W.2d 503, 508 (Iowa 2000). Wholly lawful conduct may create reasonable
suspicion for an investigatory stop when considered in light of other information
known to law enforcement. United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.
Ct. 1581, 1586-87, 104 L. Ed. 2d 1, 11-12 (1989).
Analysis.
In light of this law, we now view the facts in the record. Here, we find the
record contains a number of elements, all of which factor into the “reasonable
suspicion” equation. First, Deputy Scott was mere minutes and a short distance
away from a report of a suspicious vehicle and the possible theft of gas from a
rural residence. This information provided him with cause to be vigilant for any
similar vehicles in the area. Second, Deputy Scott observed Brock in his vehicle
at approximately 2:22 a.m. on a Monday morning, hardly a time when individuals
would normally be out driving a vehicle, let alone be parked in the lot of a closed
business. We believe this late night/early morning hour is a factor arguing in
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favor of a finding of reasonable suspicion.
Compare State v. Haviland, 522
N.W.2d 767, 769 (Iowa 1995) (finding “12:30 a.m. on a Friday night/Saturday
morning is not an unreasonable time to be out and about”).
Third, Scott observed Brock sitting in his vehicle in the parking lot of an
industrial building, not a residential area where one may have been more likely to
witness an individual in a vehicle at this time. Because the business was then
closed, it is likely there was no legitimate reason for a person to be in the lot.
This is one more factor in considering whether Deputy Scott possessed
reasonable suspicion to stop Brock’s vehicle.
See State v. Richardson, 501
N.W.2d 495, 497 (Iowa 1993) (finding reasonable cause to stop and investigate a
car where it was “parked next to a chain link fence in a nonresidential area where
there were no legitimate attractions”).
Moreover, Deputy Scott testified that in his five years as a deputy sheriff,
he had “worked that area quite a bit” but never seen anybody in that lot at that
hour of the morning. He further testified that the Swanton Ag Service Building
had been vandalized during a “rash” of such incidents less than a year prior. His
experience thus led him to believe criminal activity could be afoot. See State v.
Otto, 566 N.W.2d 509, 511 (Iowa 1997) (noting that, in part, an officer’s
experience may give rise to a specific, articulable, and reasonable suspicion of
criminal activity).
We also find significant that when Deputy Scott’s vehicle neared and
passed the lot in which Brock’s vehicle was located, Brock immediately grabbed
the wheel, put the car in gear, and drove off. Deputy Scott described this as a
“very quick movement.” While this does not describe “evasion” of an officer and
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was not done in an otherwise illegal fashion, we believe it can serve as one more
factor in this totality of the circumstances test. See Richardson, 501 N.W.2d at
497 (considering defendant’s “furtive action” of pulling out of an area of a private
business as the police approached significant in concluding there was
reasonable suspicion to stop defendant’s car).
Finally, although Deputy Scott did not observe any criminal activity or
wrongdoing by Brock, this does not mean the investigatory stop was
unreasonable.
Seemingly innocent or otherwise wholly lawful conduct may
combine with other factors to create reasonable suspicion for an investigatory
stop. See Bradford, 620 N.W.2d at 508.
Conclusion.
We conclude the totality of the circumstances provided Deputy Scott with
reasonable cause sufficient to support the investigatory stop of Brock’s vehicle.
The district court properly denied Brock’s motion to suppress and we affirm his
conviction.
AFFIRMED.
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