STATE OF IOWA, Plaintiff-Appellee, vs. ABDOULAYE TANGARA, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-818 / 09-0587
Filed November 12, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ABDOULAYE TANGARA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.
Harris, Judge (motion to suppress), and Joseph Moothart, District Associate
Judge (verdict and sentencing).
Abdoulaye Tangara appeals from judgment and sentence imposed upon
his conviction of operating while intoxicated, first offense.
REVERSED,
CONVICTION AND SENTENCE VACATED, AND REMANDED.
Matthew T. Lindholm of Gourley, Rehkemper & Lindholm, P.L.C., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Jeremy L. Westendorf,
Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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POTTERFIELD, J.
Abdoulaye Tangara appeals from judgment and sentence imposed upon
his conviction of operating while intoxicated, first offense. He contends the trial
court erred in denying his motion to suppress the results of chemical testing
because (1) there was not sufficient reason to stop his vehicle in the first
instance, and (2) he invoked his right to a phone call under Iowa Code section
804.20 (2007), which was improperly denied. We reverse and remand.
I. Facts & Procedural Background.
At about 3:00 a.m. on October 11, 2008, Officer Karla Altenbaumer of the
Cedar Falls Police Department observed Tangara’s vehicle traveling westbound
on University Avenue. Officer Altenbaumer activated the flashing lights on her
squad car. Tangara drove for about two blocks before making a right turn and
pulling over. The patrol car’s video equipment was recording a portion of the
officer’s pursuit and the stop.
As Officer Altenbaumer spoke with Tangara, she detected the odor of
alcohol and observed that his eyes were bloodshot and watery. Tangara agreed
to perform an eye test while seated in his vehicle, and based on the results,
Officer Altenbaumer requested another unit to come to the scene. Tangara failed
three standardized field sobriety tests—the horizontal gaze nystagmus, the walk
and turn, and the one-leg stand—and a preliminary breath test (PBT) indicated
his blood alcohol concentration exceeded the legal limit of .08. Tangara was
placed in Altenbaumer’s patrol car and transported to the police station. As they
began the trip to the police station, Tangara asked the officer twice whether he
could call a friend. The officer responded that “we’re kind of past that.”
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It is apparent from our review of the video recording from the patrol car,
that the recording does not confirm the officer’s testimony that she followed the
Tangara vehicle for two miles or that there was any discernable weaving within or
between the lanes of traffic.
At the police station, Officer Altenbaumer invoked implied consent, and
Tangara consented to a chemical test. The results of the test indicated his blood
alcohol concentration was .184. He was charged with operating while intoxicated
(OWI), first offense.
Tangara filed a motion to suppress the results of the chemical test, as well
as any statements made following his request to make a telephone call.
In
support of his motion, Tangara first asserted that the officer did not have
probable cause to stop his vehicle. He also argued he was improperly denied a
telephone call in violation of Iowa Code section 804.20.
At the suppression hearing, Officer Altenbaumer testified that she followed
defendant’s vehicle for “approximately two miles or so” and observed the vehicle
“weaving in and out of the traffic lanes” “approximately three times.” When asked
to describe “the weaving,” the officer replied: “He hugged the white line on the
right side and he crossed the center line between the two lanes that are
westbound.
So, the two westbound lanes, he was crossing that middle line
several times.” Officer Altenbaumer testified that after she turned on her traffic
lights, the vehicle continued “[a]pproximately two blocks, and then it made a
right-hand turn onto Main and then stopped in the middle of the road.” The
officer was asked, “During the transport from the scene of the stop to the Cedar
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Falls Police Department, did the defendant ever ask you to make a phone call to
anyone?” The officer responded, “No, he did not.”
On cross-examination, the officer testified that the onboard video
recording captured her observations “thirty seconds prior to the light being
activated” and forward. The officer further testified that Tangara’s vehicle was
traveling in the far right of three westbound lanes and that by weaving, the officer
meant “[h]is vehicle was not staying in his lane of traffic.” She did not recall
Tangara asking to call a friend or her response that “we’re past that.”
The district court denied the motion to suppress, finding (1) Tangara
“operated his motor vehicle in such a manner as to cause the police officer to be
concerned about the driver’s sobriety” and (2) Tangara’s request to call a friend
“did not trigger or otherwise implicate the protective provisions” of section 804.20.
Tangara thereafter stipulated to a trial on the minutes of testimony.
On April 8, 2009, the district court entered its “Findings of Fact,
Conclusions of Law, Decision and Order,” finding defendant guilty of OWI “in
violation of 321J.2.” Tangara now appeals.
II. Section 804.20 Violation.
Iowa Code section 804.20 provides:
Any peace officer or other person having custody of any person
arrested or restrained of the person’s liberty for any reason
whatever, shall permit that person, without unnecessary delay after
arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both.
Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney. If a call
is made, it shall be made in the presence of the person having
custody of the one arrested or restrained. If such person is
intoxicated, or a person under eighteen years of age, the call may
be made by the person having custody. An attorney shall be
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permitted to see and consult confidentially with such person alone
and in private at the jail or other place of custody without
unreasonable delay. A violation of this section shall constitute a
simple misdemeanor.
Under that statute, a person arrested for operating while intoxicated has a limited
right to consult with a lawyer or family member before deciding whether to submit
to a chemical test. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978).
The district court concluded that Tangara’s requests did not constitute an
invocation of his right under Iowa Code section 804.20 to call and consult with an
attorney or family member, because he was concerned only with having a friend
pick him up or take his vehicle to a nearby parking lot instead of talking to an
attorney or family member.
The Iowa Supreme Court’s opinions in State v. Moorehead, 699 N.W.2d
667, 671-72 (Iowa 2005), and in State v. Garrity, 765 N.W.2d 592, 596 (Iowa
2009), make it clear that, even when a defendant asks to make a phone call for
an unauthorized purpose, the officer has a duty to honor the request to call a
family member, Moorehead, 699 N.W.2d at 672, or explain the scope of the right
afforded by Iowa Code section 804.20.
Garrity, 765 N.W.2d at 596-97.1
Consequently, in the present case, Tangara’s requests to call a friend triggered
his right under section 804.20, and the officer should have explained the right
and offered him an opportunity to make an authorized phone call. Because she
did not do so, the results of Tangara’s chemical test were inadmissible. See id.
at 597. The State concedes this error, but argues the error was harmless.
1
In Garrity, decided after the hearing on the motion to suppress here, the court
nevertheless determined that admission of evidence the defendant refused to submit to
a chemical test was harmless error in light of other evidence of intoxication and reversal
of his conviction was not necessary. Garrity, 765 N.W.2d at 598.
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III. Reasonable Suspicion.
We must determine whether there was reasonable suspicion to stop
Tangara’s vehicle and detain him under the Fourth Amendment of the United
States Constitution and article I, section 8 of the Iowa Constitution. If there was
not reasonable cause to stop the vehicle, all evidence flowing from the stop is
inadmissible and we would not need to reach the State’s argument that the
804.20 violation constitutes non-prejudicial error.
Because this question arises from an alleged violation of a constitutional
right, our review is de novo. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004).
On several occasions, our courts have been confronted with the question
whether a vehicle weaving within its own lane supports a reasonable suspicion
for police to stop the vehicle. In State v. Tompkins, 507 N.W.2d 736, 738 (Iowa
Ct. App. 1993), this court addressed the issue “whether an officer may lawfully
detain a driver who has been observed to be weaving within its lane of traffic” for
the first time. We reviewed case law from other jurisdictions, see id. at 738-39,
and adopted the majority view that held that a vehicle weaving within its own lane
gave rise to reasonable cause to believe the driver was under the influence of
intoxicants. Id. at 740.
In State v. Otto, 566 N.W.2d 509 (Iowa 1997), the supreme court
discussed the Tompkins holding, stating:
We do not believe Tompkins should be read to hold that
observations of a vehicle weaving within one’s own lane of traffic
will always give rise to reasonable suspicion for police to execute a
stop of the vehicle. Rather, the facts and circumstances of each
case dictate whether or not probable cause exists to justify stopping
a vehicle for investigation.
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Otto, 566 N.W.2d at 511.
The Otto court concluded that an officer had
reasonable suspicion to stop a defendant who was driving forty in a fifty-five mile
per hour speed zone, changing her speed erratically, veering left and right at
sharp angles, and constantly going back and forth from left to right over a three
and a half mile distance. Id. at 510-11.
In Tague, 676 N.W.2d at 205, the court was again confronted with the
issue and noted,
[i]n reviewing the totality of the circumstances objectively, we
believe that any vehicle could be subject to an isolated incident of
briefly crossing an edge line of a divided roadway without giving
rise to the suspicion of intoxication or fatigue.
The Tague court conducted its de novo review of the testimony and the video
and concluded that the officer did not have sufficient grounds to stop the
defendant’s vehicle under the following circumstances:
Tague’s left tires barely crossed the edge line once for a very brief
period. The officer did not observe Tague driving erratically or his
vehicle weaving on the roadway in the mile he followed the vehicle.
....
The officer could not recall whether Tague’s vehicle was
weaving and testified that Tague was not driving erratically on Cody
Road. The officer did not notice Tague nod his head or show any
sign of drowsiness. “[I]f failure to follow a perfect vector down the
highway or keeping one’s eyes on the road [was] sufficient [reason]
to suspect a person of driving while impaired, a substantial portion
of the public would be subject each day to an invasion of [its]
privacy.”
Id. at 205-06 (citation omitted).
Citing the officer’s testimony that the vehicle was weaving in and out of its
lane and the lateness of the hour, the State here contends Officer Altenbaumer
had reasonable suspicion that the driver was impaired, which supported the stop
of Tangara’s vehicle. Tangara, however, argues that the officer’s testimony was
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contradictory and refuted by the video recording from the patrol car; thus, the
court erred in concluding there was sufficient justification for the stop.
Upon our de novo review of the video recording and the suppression
motion testimony, we do not believe the officer had sufficient grounds to stop
Tangara’s vehicle. The officer testified that she followed the defendant’s vehicle
for about two miles. Her description of the vehicle’s path ranged from “weaving
in and out of the traffic lanes” to it “hugged the white line to the right side and
crossed the center line” to “not staying in his lane of traffic.”
However, this
behavior is not evidenced on the video recording, which the officer testified
captured all observations. Moreover, the officer’s ability to recall the events was
further placed in question when she did not remember the defendant asking to
make a telephone call, though the recording clearly establishes he did ask more
than once.
An objective review of the totality of the circumstances
requires us to find the stop did not meet the reasonableness test of
article I, section 8 of the Iowa Constitution, which protects the
security of one’s privacy against arbitrary intrusion by the police.
Tague, 676 N.W.2d at 206.
IV. Conclusion.
The officer did not have reasonable suspicion to stop Tangara’s vehicle.
This stop violated Tangara’s rights as guaranteed by article I, section 8 of the
Iowa Constitution. Thus, all evidence flowing from the stop is inadmissible. The
district court erred in failing to grant Tangara’s motion to suppress. We therefore
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reverse the district court’s suppression ruling, vacate Tangara’s conviction and
sentence, and remand for further proceedings consistent with our opinion.
REVERSED,
REMANDED.
CONVICTION
AND
SENTENCE
VACATED,
AND
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