STATE OF IOWA, Plaintiff-Appellee, vs. RICKY DEAN ANDERSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-763 / 07-0415
Filed December 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICKY DEAN ANDERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Jeffrey L. Larson,
Judge.
Ricky Dean Anderson appeals the judgment and sentence entered
following his conviction of second-offense possession of marijuana. AFFIRMED.
Patrick Sondag, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, and Daniel Feistner, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
2
ZIMMER, J.
Ricky Dean Anderson appeals the judgment and sentence entered
following his conviction of second-offense possession of marijuana in violation of
Iowa Code section 124.401(5) (2005). Anderson alleges the district court erred
in overruling his motion to suppress evidence because police officers were not
justified in conducting a protective search for weapons and did not have
independent grounds for arresting and searching him incident to arrest. 1
Although we find the initial protective search was improper, we conclude the
defendant’s illegal resistance to the pat-down search gave police independent
grounds to arrest Anderson and search him incident to the arrest. We affirm.
I. Background Facts and Proceedings.
On June 11, 2006, around 2:00 a.m., Atlantic Police Officer Joshua
McLaren was on routine patrol, accompanied by Reserve Officer Brandon
Krause and an intern, Donald McLaren. Officer McLaren noticed a passenger in
a pickup truck was not wearing a seatbelt, and he stopped the truck.
Officer McLaren approached the truck and recognized all three of the
occupants on sight. He detected an odor of alcohol coming from within the truck,
which was being driven by Gary Buboltz.
The two passengers were Cynthia
Buboltz and Anderson. Neither passenger was wearing their seatbelt.
1
Anderson asserts his rights under the Fourth Amendment of the United States
Constitution and Article I, Section 8 of the Iowa Constitution were violated. Our supreme
court has generally interpreted Article I, Section 8 to have the same scope and purpose
as the Fourth Amendment. State v. Legg, 633 N.W.2d 763, 765 (Iowa 2001). Because
Anderson has offered no reason to distinguish the state constitutional guarantee from
the federal provision as it has been interpreted by the United States Supreme Court with
respect to the issue before us, our discussion of the Fourth Amendment applies equally
to the state constitutional claim.
3
Officer McLaren obtained identification from all of the truck’s occupants
and returned to his patrol car to confirm the validity of their licenses and to check
for warrants. As Officer McLaren sat in his patrol car, he saw the occupants of
the truck moving their heads and upper torsos as though “reaching and grabbing”
for something. Around this time, Officer Shawna Becker arrived on the scene. 2
Officer McLaren confirmed there were no outstanding warrants for anyone in the
pickup. 3
Officer McLaren returned to the truck and asked Gary Buboltz to step out
of the vehicle. Officer McLaren determined that Buboltz and his passengers had
been drinking. He then had Buboltz perform a series of field sobriety tests. After
approximately ten minutes of testing, he determined that Buboltz was not
intoxicated. During this time, Officer McLaren did not notice anything that caused
him concern for his safety. After concluding that Buboltz was not under the
influence, Officer McLaren asked Buboltz if he could search the pickup for open
beer or anything else illegal. Buboltz consented to the search of his truck.
Before searching the truck, Officer McLaren asked Cynthia Buboltz and
Anderson to exit the vehicle. All three occupants were then patted down without
their consent. Reserve Officer Krause patted down Gary Buboltz, Officer Becker
patted down Cynthia Buboltz, and Officer McLaren patted down Anderson.
As Officer McLaren began to pat Anderson down, he felt a small, hard,
metallic object in the left front pocket of Anderson’s jeans.
2
3
Officer McLaren
The record indicates that Deputy Darby McLaren was also at or near the scene.
While the records check was in progress, Deputy McLaren referred to the defendant as
“Rocket” and joked that his apparent nickname was short for “Rocket Scientist.”
4
asked if the object was a lighter, and Anderson said it was not. Officer McLaren
asked Anderson what the object was, but Anderson refused to identify the object
and he put his hands in his pockets. Officer McLaren told him to take his hands
out of his pockets and Anderson refused.
Anderson asked if he was under
arrest. Officer McLaren told him he was not under arrest, but continued to tell
him to take his hands out of his pockets. Anderson did not comply with Officer
McLaren’s requests.
Officer McLaren then took hold of Anderson’s left hand and told him to put
his hands on the truck. At that point, Anderson “kind of spun away and took
about two steps” away from the officer. Several officers grabbed Anderson and
“a short struggle” ensued before officers took Anderson to the ground and
handcuffed him. Anderson’s chin was cut as a result of the fall to the ground,
and an ambulance was called to the scene. While waiting for the ambulance, the
officers searched Anderson. The officers located a metal marijuana pipe, rolling
papers, and a plastic bag containing 1.10 grams of marijuana in his left front
jeans pocket.
On July 6, 2006, the State filed a trial information, with minutes of
testimony attached, formally charging Anderson with second-offense possession
of a controlled substance.
Anderson pled not guilty and filed a motion to
suppress all evidence seized from him on June 11. He argued that the initial pat
down was improper because Officer McLaren had no reason to believe that
Anderson was armed and dangerous. The State filed a resistance to the motion
arguing that Officer McLaren patted Anderson down for officer safety, and that
the search of Anderson was incident to a lawful arrest.
5
A suppression hearing was held, and the court heard testimony from
Officer McLaren and viewed a DVD recording of the traffic stop taken from the
police car.
Following the hearing, the court overruled Anderson’s motion to
suppress, finding that the initial pat down was reasonable. Anderson filed a
motion to reconsider and/or for expanded findings, which the district court
denied. Anderson subsequently waived jury trial and was found guilty of secondoffense possession of a controlled substance after a stipulated trial on the
minutes of testimony. He was sentenced on February 26, 2007.
Anderson appeals.
II. Scope and Standards of Review.
Anderson challenges the district court’s denial of his motion to suppress,
which implicates his constitutional rights; as a result our review is de novo. State
v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). We make an independent evaluation
of the totality of the circumstances as shown by the entire record.
State v.
Turner, 630 N.W.2d 601, 606 (Iowa 2001). In reviewing the district court’s ruling
on a motion to suppress, we consider both the evidence presented during the
suppression hearing and that introduced at trial. State v. Andrews, 705 N.W.2d
493, 496 (Iowa 2006). Because this case was tried to the court on the minutes of
testimony, they are included in the record. See id.
III. Discussion.
The Fourth Amendment to the United States Constitution protects people
from unreasonable searches and seizures by government officials.
State v.
Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). Warrantless searches and seizures
are presumptively unreasonable, and the State bears the burden of proving a
6
warrantless search falls within one of the exceptions to the warrant requirement
of the Fourth Amendment. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002).
One of the well-established exceptions to the warrant requirement is the Terry
stop, which allows an officer to stop an individual for investigatory purposes
based on a reasonable suspicion that a criminal act has occurred or is occurring.
Id.; Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906
(1968).
[W]here a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous . . . he is entitled for the
protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
Terry, 392 U.S. at 30, 88 S. Ct. at 1884-1885, 20 L. Ed. 2d at 911. The officer
“must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant th[e] intrusion.” Id. at 21,
88 S. Ct. at 1880, 20 L. Ed. 2d at 906.
Anderson alleges the district court erred in finding that Officer McLaren
had reasonable grounds to pat him down for weapons. In concluding the initial
pat down was reasonable, the court noted that because a search of the vehicle
was to take place at approximately 2:00 a.m. and because there were three
occupants in the vehicle, “it was prudent to do a pat-down of all three, including
[Anderson].” For the reasons which follow, we conclude the initial pat down was
improper.
Officer McLaren pulled the truck over on a well-lit public roadway to
investigate an apparent seatbelt violation. The officer was acquainted with all
7
three occupants of the vehicle, and he observed nothing unusual in the pickup
bed or inside the cab. Officer McLaren was accompanied by a reserve officer
and an intern, and was joined by two other officers shortly after he stopped the
truck. Officer McLaren indicated he observed the occupants of the truck make
some suspicious movements “like reaching and grabbing,” while he was
checking the occupants’ licenses in his patrol car. However, when he returned to
the truck he observed nothing that alarmed him, and he did not conduct a patdown search for his safety.
Officer McLaren then proceeded to conduct field sobriety tests on the
driver, which lasted for approximately ten minutes.
During this time, Officer
McLaren did not feel threatened by the driver or the truck’s other occupants.
After concluding Gary Buboltz was not intoxicated, Officer McLaren asked for
and received permission to search his vehicle. At that point, the defendant and
the Buboltzes were frisked. Officer McLaren testified he routinely conducts patdown searches for his own safety when “there’s a consent search of a vehicle
and somebody steps out.” However, he was unable to point to anything specific
about the occupants of the truck indicating that they may be armed and
dangerous. 4 Id. The record in this case does not support the conclusion that he
had a reasonable belief that the defendant might be armed and dangerous.
Therefore, we conclude the district court erred in finding the initial pat-down
search was reasonable. This conclusion, however, does not end our inquiry in
this case.
4
It is apparent from the overall record that the generalized movements which McLaren
observed when he was checking the licenses of the occupants of the pickup were not
why the officer frisked the defendant.
8
The State agrees Officer McLaren did not have constitutionally sufficient
reasons to permit his initial pat-down search. However, the State argues that
Anderson’s illegal resistance to the pat down gave Officer McLaren valid,
independent grounds to arrest Anderson and search him. For the reasons which
follow, we agree. Our supreme court has stated “[e]ven though an initial arrest is
unlawful, a defendant has no right to resist the arrest. If the defendant does so,
probable cause exists for a second arrest for resisting. A search incident to the
second arrest is lawful.” State v. Dawdy, 533 N.W.2d 551, 555 (Iowa 1995)
(citing United States v. Bailey, 691 F.2d 1009, 1016-18 (11th Cir. 1982)). In
Dawdy, the court held “that a defendant’s response to even an invalid arrest or
Terry stop may constitute grounds for arrest.”
Id.
In determining whether
probable cause existed for the second arrest, the test used is an objective one.
Id.
Anderson does not claim that the principles in Dawdy do not encompass
an illegal pat-down, as well as resistance to an improper arrest.
However,
Anderson argues that his actions did not constitute interference with official acts
and did not provide valid grounds for his arrest. He contends he “used no force
whatever against Officer McLaren,” “made no attempt to run away or flee the
area,” and merely “passively sought to terminate the search.”
review of the record, we reach a different conclusion.
Upon careful
At the suppression
hearing, Officer McLaren testified that after he took hold of Anderson’s arm and
instructed him to place his hands on the truck, Anderson “kind of spun away and
took about two steps” away from the officer.
As reported in the minutes of
testimony, Officers McLaren, Becker, and Krause all saw Anderson’s actions as
9
an attempt to flee. Officer Darby McLaren, who had arrived on the scene as a
backup officer, stated that after Anderson was instructed to put his hands on the
truck, “Anderson then swung around obviously not listening to the directions. I
am unaware if he was trying to escape by running or if he getting ready to fight.”
The testimony presented at the suppression hearing, as well as the evidence
contained in the minutes of testimony, which are uncontroverted, indicate that “a
short struggle” took place after Officer McLaren told Anderson to place his hands
on the truck. Based on the foregoing evidence, we conclude a reasonable police
officer could have viewed Anderson’s actions as interference with official acts,
which provided probable cause for arrest. See id. (“The struggle that ensued
when the state trooper attempted to handcuff Dawdy, though quickly suppressed,
would provide a reasonable police officer with probable cause for an arrest under
Iowa law.”).
If Anderson had not resisted Officer McLaren’s request to place his hands
on the truck, and if he had allowed the pat-down search to be conducted without
resistance, we would have no grounds on which to affirm the district court’s ruling
denying Anderson’s motion to suppress evidence. This is because the initial patdown search was improper. However, because Anderson’s resistance provided
an independent ground for his arrest, we believe the subsequent search of his
person was valid as a search incident to arrest.
See State v. Canada, 212
N.W.2d 430, 434 (Iowa 1973) (stating a warrantless search incident to valid
arrest, if properly limited, is reasonable and an arresting officer may search the
person arrested in order to remove any weapons the arrestee might seek to use
in order to resist arrest or effect escape and to prevent concealment or
10
destruction of evidence).
Strong policy reasons underlie the rule that a
defendant may be arrested as a result of resisting police misconduct. As noted
in Dawdy, a “contrary rule would virtually immunize a defendant from prosecution
for all crimes he might commit that have a sufficient causal connection to the
police misconduct.” 533 N.W.2d at 555 (quoting Bailey, 691 F.2d at 1017).
IV. Conclusion.
We conclude that the police did not have reasonable grounds to pat the
defendant down for weapons; however, the defendant’s illegal resistance to the
pat-down search provided officers with independent grounds to arrest and search
him incident to arrest. Accordingly, we affirm the district court’s ruling denying
Anderson’s motion to suppress.
AFFIRMED.
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