STATE OF IOWA, Plaintiff-Appellee, vs. JASON ALLEN WING, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-420 / 08-1048
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JASON ALLEN WING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Hobart Darbyshire,
Judge.
Jason Wing appeals from his conviction of possession of marijuana with
intent to deliver. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Michael J. Walton, County Attorney, and Robert Weinberg, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
On July 7, 2007, a detective from the Tactical Operations Bureau
requested that Officer Brian Schertz perform a traffic stop on a vehicle to aid in a
narcotics investigation. Schertz stopped the vehicle, driven by Brandi Basden,
whose vehicle registration was expired. Jason Wing, the target of the narcotics
investigation, was a passenger.
Basden consented to Schertz‟s request to
search the vehicle. Schertz asked that Basden and Wing stand on the sidewalk
while he conducted the search.
In the trunk of the vehicle, Schertz discovered a cellular phone box
containing a brick of marijuana in a plastic bag. Upon discovering the marijuana,
Schertz placed Basden in the back of his patrol car.1 Wing asked Schertz if he
had found the marijuana, and Schertz responded that he had. Wing informed
Schertz the marijuana was his. Schertz removed Basden from the patrol car and
allowed her to drive away after the traffic stop was complete.
Schertz read Wing his Miranda rights, handcuffed him, and placed him in
the back of the patrol car. Wing testified that he considered himself to be under
arrest at this point. Schertz testified that he handcuffed Wing for officer safety
purposes in case Wing tried to fight or run.
Around this time, Corporal Gilbert Proehl arrived at the scene. He asked
Schertz to remove Wing‟s handcuffs. Wing agreed that Proehl could search his
home.
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Accordingly, Proehl advised Schertz to transport Wing back to his
Schertz did not handcuff Basden or read her Miranda rights. She was in the patrol car
for less than two minutes.
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residence. Schertz asked Proehl for clarification as to whether Wing was under
arrest at the time, and Proehl responded with a code fifty-nine, which meant that
Wing was not under arrest. Neither officer ever informed Wing that he was or
was not under arrest. The traffic stop took roughly twenty-five minutes, though
Wing was handcuffed for only eleven minutes. The drive back to Wing‟s home
took around five minutes.
Wing was cooperative while Proehl and Sergeant Kevin Smull searched
his residence. Wing discussed with Proehl the possibility of helping with other
drug investigations in the area. Once Wing informed Proehl he would be willing
to help with other investigations, Proehl provided Wing an inventory of the items
seized at his residence and gave Wing his phone number. Proehl instructed
Wing to call him. After about half an hour, the officers left Wing‟s residence.
Roughly five months passed, and Wing did not call Proehl. Proehl filed a
complaint on December 18, 2007. A trial information was filed January 11, 2008,
charging Wing with possession of marijuana with intent to deliver in violation of
Iowa Code section 124.401(1)(d) (2007) and violation of the drug tax stamp act in
Iowa Code section 453B.12.
On February 20, 2008, Wing filed a motion to
dismiss pursuant to Iowa Rule of Criminal Procedure 2.33(2)(a) (speedy
indictment violation). On April 22, 2008, the district court denied Wing‟s motion
to dismiss, finding that Wing had not been arrested on July 7, 2007. On April 28,
2008, after a stipulated trial on the minutes of testimony, the district court found
Wing guilty of possession of marijuana with intent to deliver. The district court
dismissed the tax stamp charge pursuant to a plea agreement. Wing appeals,
arguing the district court erred in denying his motion to dismiss.
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II. Standard of Review
Our scope of review is for errors at law. State v. Waters, 515 N.W.2d 562,
566 (Iowa Ct. App. 1994). We are bound by the district court‟s findings of fact
supported by sufficient evidence. Id.
III. Speedy Indictment
Iowa Rule of Criminal Procedure 2.33(2)(a) provides that when an
indictment is not found within forty-five days after arrest, “the court must order the
prosecution to be dismissed, unless good cause to the contrary is shown or the
defendant waives the defendant‟s right thereto.” The State does not claim good
cause or waiver here.
The term “indictment” embraces the trial information.
Iowa R. Crim. P. 2.5(5). Wing argues that because the trial information was filed
more than forty-five days after his arrest, the district court should have dismissed
the prosecution. The State argues that Wing was not arrested during his initial
encounter with officers on July 7, 2007. The sole issue in this case is whether
Wing was arrested at that time.
To determine whether an arrest occurred, we must consider relevant
statutory authority. Iowa Code section 804.5 defines “arrest” as “the taking of a
person into custody when and in the manner authorized by law, including
restraint of the person or the person‟s submission to custody.”
Iowa Code
section 804.14, entitled “Manner of making arrest,” states:
The person making the arrest must inform the person to be
arrested of the intention to arrest the person, the reason for arrest,
and that the person making the arrest is a peace officer, if such be
the case, and require the person being arrested to submit to the
person‟s custody . . . .
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Previous cases are also instructive in determining what constitutes an
arrest.
“[A]n arrest can occur without the police specifically informing the
arrestee of their intention to arrest.” State v. Delockroy, 559 N.W.2d 43, 45 (Iowa
Ct. App. 1996).
“In the absence of explicit statements by police, we must
consider the remaining surrounding circumstances to determine whether an
arrest occurred.” Id. at 46. In examining the surrounding circumstances, “we
look to determine if the facts reveal an assertion of authority and purpose to
arrest, together with a submission of the arrestee.” Id. “[T]he mere submission
to authority does not constitute an arrest.” Id. at 45. “The court looks to whether
the officers had a „purpose to arrest‟ or whether a reasonable person would have
believed otherwise.”
State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997).
However, “an arrest does not necessarily take place because a reasonable
person in the same or similar circumstances would not believe he or she was
free to leave.”
Delockroy, 559 N.W.2d at 45.
Whether a defendant was
handcuffed can be considered in determining whether an arrest was made.
Dennison, 571 N.W.2d at 495. “The lack of booking or charges being filed does
not necessarily mandate a finding of no arrest.” State v. Rains, 574 N.W.2d 904,
910 (Iowa 1998). “[W]hether a defendant was „arrested‟ is determined on a caseby-case basis. There is no bright-line rule or test.” Dennison, 571 N.W.2d at 495.
An initial encounter with law enforcement authorities is not deemed to be
an arrest when the individual is given a choice between cooperating as a
confidential informant or being taken into custody and charged. See State v.
Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992).
In Johnson-Hugi, the
defendant sold drugs to an undercover officer. Id. at 599. Officers confronted
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the defendant in her home and offered her a choice of either cooperating and
acting as a confidential informant or being arrested for delivering a controlled
substance. Id. at 600. Not surprisingly, the defendant decided to cooperate and
assist the officers.
Id.
The officers then patted down Johnson-Hugi and
transported her to an Iowa highway patrol station. Id. While at the station, the
officers read her Miranda rights. Id. The Iowa Supreme Court found that officers
had not arrested the defendant, but rather presented her “with the alternative of
either cooperating as a confidential informant or being arrested, and her decision
to cooperate as an informant necessarily precluded the possibility of there being
an „arrest.‟” Id. at 601. “Thus, the police did not transport [the defendant] to the
station for the purpose of an arrest, but to complete paperwork concerning her
decision to cooperate. It was a voluntary meeting with police, initiated by the
defendant‟s decision to cooperate.” Delockroy, 559 N.W.2d at 45.
This court considered factually similar circumstances in State v. Smith,
552 N.W.2d 163 (Iowa Ct. App. 1996), and distinguishing circumstances in the
companion case of State v. Delockroy, 559 N.W.2d 43 (Iowa Ct. App. 1996).
Officers discovered drugs and drug paraphernalia when they executed a search
warrant on the home shared by Smith and Delockroy. Delockroy, 559 N.W.2d at
44. Smith asked what type of charges he was facing and if there was anything
he could do to help himself. Id. Delockroy was in the room during Smith‟s
conversation with the officers, but she did not participate in the discussion. Id.
An officer informed Smith of the charges and stated he would be taken to the
sheriff‟s office “to discuss the matter.”
Id.
Both Smith and Delockroy were
handcuffed and transported to the sheriff‟s investigative offices, where the
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handcuffs were removed. Id. Officers separated the two defendants and read
each Miranda warnings. Id. Neither was informed that he or she was under
arrest. Id.
Smith and Delockroy remained at the sheriff‟s office for “several hours.”
Smith, 552 N.W.2d at 164. While at the sheriff‟s office, Smith entered into a
cooperation agreement allowing him leniency and offering a reduced charge for
Delockroy in exchange for Smith‟s information about local drug traffic. Id. Smith
did not provide useful information, and he and Delockroy were both charged
several months later. Both moved to dismiss the charges against them under the
speedy indictment provision of the Iowa Rules of Criminal Procedure, now rule
2.33. This court reached different conclusions in the two cases, based upon the
negotiation of a cooperation agreement.
Smith argued his case was distinguishable from Johnson-Hugi because
he did not enter into a cooperation agreement until after he had been handcuffed
and transported to the law enforcement center whereas Johnson-Hugi entered
into the cooperation agreement before any such intrusive actions were taken. Id.
at 166; See also Johnson-Hugi, 484 N.W.2d at 600. In finding no arrest had
taken place, this court stated, “We agree with defendant there are factual
differences [between his case and Johnson-Hugi] but note the trial court found
here the transportation to and holding at the law enforcement center were
incidental to the [cooperation] agreement.” Smith, 552 N.W.2d at 166.
In deciding Delockroy, this court stated:
Smith‟s own invitation to enter into a cooperation agreement made
while Smith was still in his home and prior to any intrusive police
action rendered Smith‟s subsequent transportation to the
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courthouse incidental to the later agreement.
Although the
possibility of an arrest existed when Smith was taken from his
home by police, the expectations of an agreement were sufficient to
preclude a reasonable belief an arrest had taken place.
Delockroy, 559 N.W.2d at 45. However, in Delockroy, we considered the same
law enforcement actions used against Smith and found that Delockroy had been
arrested because she did not negotiate a cooperation agreement. Id. This court
distinguished Smith, stating, “Unlike Smith, Delockroy was not seeking to
negotiate a deal to preclude an arrest and there was no exchange between the
officers and Delockroy to support a reasonable expectation her arrest would be
delayed.” Id. at 45-46. At the sheriff‟s office, Smith took control of his situation
by negotiating a deal in exchange for his cooperation, and we found no arrest
occurred; Delockroy did not trade leniency for cooperation and was found to be
under arrest. Id. at 46; Smith, 552 N.W.2d at 166.
Our supreme court recognized that a cooperation agreement affects the
analysis of arrest factors in Johnson-Hugi:
Law enforcement authorities must be accorded latitude in procuring
the non-volunteer assistance of private citizens to serve as
confidential informants in combating crime. If every such action
were deemed to be an „arrest‟ for purposes of rule [2.33(2)(a)], the
time within which authorities could use informants to obtain
information would be substantially limited. We refuse to hamstring
law enforcement authorities by such a rule.
Johnson-Hugi, 484 N.W.2d at 602.
After a review of the surrounding circumstances here in light of the
precedents discussed previously, we believe the district court correctly concluded
Wing was not arrested. A single officer first encountered Wing in the context of a
traffic stop.
Although Wing was handcuffed after admitting ownership of
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marijuana, his handcuffs were removed after a second officer arrived at the
scene. The officer transported Wing to his home after Wing consented to a
search. Neither officer told Wing he was under arrest, and he was not charged
with any crime or issued any citation. The second officer, Proehl, simply gave
Wing his phone number and asked Wing to call him pursuant to their cooperation
agreement.
Further, the record shows the officers did not have a purpose to arrest
Wing. At the scene of the traffic stop, Proehl informed Schertz that Wing was not
under arrest “for now, until he decides what he wants to do.” Thus, Proehl‟s
decision to transport Wing to his house was not for the purpose of arrest, but for
investigative purposes in which Wing was cooperating.
See Dennison, 571
N.W.2d at 497 (finding detention for investigative purposes does not constitute
an arrest).
As in Smith and Johnson-Hugi, Wing‟s cooperation with officers,
along with the other circumstances of his treatment by the officers, precluded a
reasonable belief that he had been arrested. The district court properly denied
Wing‟s motion to dismiss.
Because we find Wing properly preserved his claim in his motion to
dismiss, we decline to address his alternative claim of ineffective assistance of
counsel.
AFFIRMED.
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