STATE OF IOWA, Plaintiff - Appellee, vs. JASON JAMES CHIHAK, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-090 / 08-0452
Filed March 11, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JASON JAMES CHIHAK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar (motion to suppress) and Bruce B. Zager (trial), Judges.
Jason Chihak appeals the district court‟s denial of his motion to suppress
evidence and his conviction of possession of a controlled substance (marijuana).
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brook Jacobson, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Doyle, JJ.
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DOYLE, J.
Jason Chihak appeals from his conviction of possession of a controlled
substance (marijuana). He contends the district court erred in denying his motion
to suppress evidence. Upon our review, we reverse and remand.
I. Background Facts and Proceedings.
During the afternoon of March 23, 2007, Waterloo Police Officers Zubak
and Lowrey were on patrol in a police vehicle looking for traffic offenders. At
approximately 1:16 p.m., they observed a vehicle circle a block a couple of times
near a known drug house. The officers‟ attention was first drawn to the vehicle
because of its loud muffler. They conducted a traffic stop of the vehicle for the
loud muffler. Both officers exited the squad car. Officer Zubak approached the
driver‟s side of the vehicle, and Officer Lowrey approached the passenger side.
Officer Zubak spoke with the driver, Murley, and inquired about the muffler. He
then returned to the squad car to check Murley‟s driver‟s license status, which
was normal. Upon returning to the vehicle, Officer Zubak asked Murley to step
out and come to the back of the vehicle to talk. Murley consented to a search of
the vehicle. Meanwhile, Officer Lowrey approached the passenger side of the
vehicle and asked the passenger, Chihak, for identification.
Officer Lowrey
checked for warrants and wants. There were none, so Officer Lowrey stepped to
the rear of the vehicle. After Officer Zubak obtained consent from the driver for a
search of the vehicle, Officer Lowrey asked Chihak to step out of the vehicle.
Once outside the vehicle, Officer Lowrey said, “I‟m going to pat you down, make
sure you don‟t have any bombs, guns, knives, or anything that can stick me.”
Chihak made no verbal response and just stood there and let the officer pat him
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down. Officer Lowrey testified he conducted the pat-down for officer safety to
make sure Chihak did not have a gun in his pocket or a knife in his pocket or
something that could harm Lowrey in some way when he put him to the rear of
the vehicle. Officer Zubak was going to search the driver‟s side of the vehicle,
and Officer Lowrey was going to search the passenger side, while Murley and
Chihak stood at the rear of the vehicle. During his pat-down of Chihak, Officer
Lowrey testified, “I think I had him turn around [so Chihak would be facing away
from the officer] and I searched him from the sides, and I got down to his pants
when I saw his pocket was open. He had baggy shorts on.” Officer Lowrey
testified he could see inside the pocket of the shorts without actually having to
pat the pockets down, and that he observed a small plastic bag containing a
green substance consistent with marijuana. Chihak was placed under arrest and
handcuffed. Officer Lowrey then conducted a secondary search and removed
the plastic bag from Chihak‟s pocket. The bag was found to contain 4.2 grams of
marijuana.
Chihak was charged with third offense possession of a controlled
substance (marijuana), a class “D” felony in violation of Iowa Code section
124.401(5) (2007). Chihak filed a motion to suppress evidence obtained from the
officer‟s pat-down search. The denying the motion, the district court concluded:
Officer safety is a reasonable concern and search of the persons
who are exiting the vehicle for the search in order to assure officer
safety while they are searching the vehicle is also reasonable. The
pat down search was a minimal intrusion which put the officer in a
position for a plain view observation. The baggy nature of the
shorts and, therefore, the ability to have a view into a gaping pocket
was credibly reported by the officer. Search of the pocket area
would have been inevitably made if the officer had not first made
the plain view observation. The intrusion for the pat down was
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justified for officer safety and the discovery was inadvertent as the
officer‟s primary concern for officer safety was weapons.
Chihak waived jury trial, and the case proceeded to a bench trial on the
stipulated minutes of testimony. Chihak was found guilty of possession of a
controlled substance (marijuana) and subject to the enhancement of a class D
felony in violation of section 124.401(5).
He was sentenced to a term of
imprisonment not to exceed five years, along with a suspended fine and various
surcharges.
On appeal, Chihak does not challenge the legality of the traffic stop, the
search of the vehicle based on consent, or the officer‟s request for Chihak to step
out of the vehicle. Rather, Chihak submits that the officer‟s pat-down search
violated his right to be free from unreasonable searches and seizures as
guaranteed under the federal and state constitutions.
II. Standard of Review.
We review this constitutional question de novo.
State v. Lane, 726
N.W.2d 371,377 (Iowa 2007). This review requires “„an independent evaluation
of the totality of the circumstances as shown by the entire record.‟” Id. (citations
omitted). We may consider the evidence presented at the suppression hearing
and at trial in our review. State v. Andrews, 705 N.W.2d 493, 496 (Iowa 2005).
We give deference to the district court‟s factual findings due to its ability to
evaluate witness credibility, but we are not bound by its findings. Lane, 726
N.W.2d at 377. Error was preserved for our review by the district court‟s adverse
ruling on the motion to suppress. State v. Breuer, 577 N.W.2d 41, 44 (Iowa
1998).
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III. Discussion.
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, no matter how relevant or probative the evidence
may be. State v. Manna, 534 N.W.2d 643, 643-44 (Iowa 1995).
Warrantless searches and seizures are per se unreasonable unless they
fall within one of the carefully drawn exceptions to the warrant requirement.
State v. Simmons, 714 N.W .2d 264, 271 (Iowa 2006). Valid exceptions to the
warrant requirement include searches based on (1) consent, (2) plain view,
(3) probable cause coupled with exigent circumstances, (4) searches incident to
arrest, and (5) those based on the emergency aid exception. State v. Lewis, 675
N.W.2d 516, 522 (Iowa 2004).
The State has the burden of proving by a
preponderance of the evidence that a warrantless search falls within one of the
exceptions to the warrant requirement. Id.
It is not contested in this appeal that the officers had a right to stop the
vehicle because of the loud muffler. Additionally, Chihak does not contest that
the officers had a right to search the vehicle in which Chihak was a passenger
based on Murley‟s consent, nor does Chihak dispute that the officers had the
right to order him out of the car to facilitate the lawful consent search of the
vehicle. Rather, the crux of the appeal is based on what occurred after the
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officer ordered Chihak out of the car. Specifically, we must determine whether
Officer Lowrey was justified in performing a pat-down search of Chihak.
As stated above, after Chihak exited the car at the request of Officer
Lowrey, the officer stated “I‟m going to pat you down, make sure you don‟t have
any bombs, guns, knives or anything that can stick me.”
The State argues
Officer Lowrey had a right to conduct this pat-down search of Chihak prior to
searching the car in order to ensure his own safety. Officer Lowrey testified he
just wanted to “make sure [Chihak] didn‟t have a gun in his pocket or a knife in
his pocket or something that [Chihak] could harm me in some way when I put him
to the rear of the vehicle” while he was assisting in the search of the vehicle.
Additionally, he testified “[a]ny time I have anybody to my back it tends to be an
officer safety issue.” The State argues the pat-down Officer Lowrey performed
was justified under the officer safety exception.
The issue here is controlled by the landmark decision of Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. Under Terry,
an officer has authority to conduct a reasonable search for weapons for the
officer‟s own protection, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable cause to
arrest the individual. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at
909; see also Michigan v. Long, 463 U.S. 1032, 1047-50, 103 S. Ct. 3469, 348081, 77 L. Ed. 2d 1201, 1218-19 (1983); Ybarra v. Illinois, 444 U.S. 85, 92-94, 100
S. Ct. 338, 343-44, 62 L. Ed. 2d 238, 246-47 (1979); Pennsylvania v. Mimms,
434 U.S. 106, 112, 98 S. Ct. 330, 334, 54 L. Ed. 2d 331, 337-38 (1977).
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The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger. And in determining whether the
officer acted reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or „hunch,‟
but to the specific reasonable inferences which he is entitled to
draw from the facts in light of his experience.
Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909 (citations omitted).
In justifying this particular intrusion upon individuals‟ constitutionally protected
interests the officer “must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion.”
Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.
The Fourth
Amendment requires that at some point the reasonableness of a particular
search or seizure can be subjected to the neutral, detached scrutiny of a judge.
Id. The judge must then evaluate the reasonableness in light of the particular
circumstances, and in making that assessment must employ an objective
standard: “would the facts available to the officer at the moment of the seizure or
search „warrant a man of reasonable caution in the belief‟ that the action taken
was appropriate?” Id. at 21-22, 88 S. Ct. at 88, 20 L. Ed. 2d at 906.
Officer Lowrey testified he was going to conduct the pat-down search of
Chihak to ensure his safety.
However, he also testified that Chihak was
cooperative (the driver was also cooperative), gave him his ID, made no
movements and was not moving around, was not threatening, and that Chihak
was not a danger to him when he asked him to step out of the car.
This
testimony demonstrates that Officer Lowrey did not have the requisite
“reasonable belief” that Chihak was armed and presently dangerous to justify the
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initiation of a pat-down search. Furthermore, not only is there no testimony from
the officer that he had any belief that Chihak was armed or dangerous, we
cannot find that the facts available to the officer at the time of the search would
have warranted a person of reasonable caution to believe that he was.
Certainly such determinations must be made by officers and courts on a
case-by-case
basis,
taking
into
consideration
all
of
the
surrounding
circumstances. We are mindful of the importance of an officer‟s safety during
even routine traffic stops; however, none of the circumstances which might lead
a reasonable person to believe Chihak was armed and presently dangerous can
be found in the present record. There is no evidence in the record of any furtive
movements or nervous behavior by Chihak (or the driver), as was found in part to
justify such a “reasonable belief” in Maryland v. Wilson, 519 U.S. 408, 410-11,
117 S. Ct. 882, 884, 137 L .Ed. 2d 41, 45 (1997). Nor is there any evidence in
the record to indicate this stop took place late at night in a high crime district,
other factors the Supreme Court has taken into consideration in finding an
officer‟s actions reasonable for officer safety reasons. See Adams v. Williams,
407 U.S. 143, 144, 92 S. Ct. 1921, 1922, 32 L. Ed. 2d 612, 616 (1972).
We conclude there are no specific and articulable facts in the record
which, taken together with rational inferences from those facts, justified Officer
Lowrey in subjecting Chihak to a pat-down search. See Terry, 392 U.S. at 21, 88
S. Ct. at 1880, 20 L. Ed. 2d at 906. The State has failed to meet its burden to
prove circumstances existed which would support a reasonable belief Chihak
was armed and presently dangerous, thus allowing Officer Lowrey to conduct a
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pat-down search. Thus, Officer Lowrey did not have the right to conduct a patdown search.
The State further argues that even if Officer Lowrey was not justified in
performing the pat-down search, Chihak‟s appeal should be denied because the
marijuana was discovered in plain view. Plain view is an exception to the warrant
requirement of the Fourth Amendment. See Lewis, 675 N.W.2d at 522 (Iowa
2004) (citations omitted). The plain view exception applies when the following
conditions are present: (1) the item seized is in plain view, (2) the incriminating
character of the item seized was immediately apparent, and (3) the police were
rightfully in the place that allows them to observe the item. State v. McGrane,
733 N.W.2d 671, 680 (Iowa 2000) (citing Horton v. California, 496 U.S. 128, 136,
110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112, 123 (1990)). Arguably, the first two
conditions are present here. The third is not. Officer Lowrey saw the bag of
marijuana only after he began the impermissible pat-down search.
In other
words, it was the impermissible pat-down that placed the officer in the position to
observe the bag of marijuana in Chihak‟s pants pocket. Under the circumstances
presented, Officer Lowrey was not rightfully in a place that allowed him to
observe the item. There is no testimony that he observed the bag of marijuana
before he began the search. The plain view exception does not apply in this
case.
IV. Conclusion.
For all the reasons stated above, we conclude the trial court erred in
denying Chihak‟s motion to suppress. The officer was not justified in conducting
a pat-down search immediately following Chihak‟s removal from the vehicle as
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he could not, at that point in the encounter, point to any specific and articulable
facts which would warrant a reasonable person confronted with the same
surrounding circumstances to believe Chihak was armed and presently
dangerous. Chihak had not done anything suspicious during the traffic stop, and
neither did the driver. It was only after Officer Lowrey began his pat-down search
of Chihak that he observed the marijuana. The plain view exception does not
apply to the circumstances presented in this case. Therefore, the discovery of
the marijuana came about through a violation of Chihak‟s fourth Amendment right
to be free from unreasonable search and seizure and should have been
inadmissible and suppressed. We therefore must reverse and remand to the
district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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