State of Iowa v. Kip Michael George Bryan

IN THE COURT OF APPEALS OF IOWA

No. 13-2069
Filed April 8, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KIP MICHAEL GEORGE BRYAN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David C.

Larson, District Associate Judge.

Kip Bryan appeals his judgment and sentence for operating a motor

vehicle while intoxicated (first offense). AFFIRMED.

Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Jon M. Martin, County Attorney, and Travis S. Johnson, Assistant

County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, P.J.

We must decide whether an officer “seized” a driver under the Fourth

Amendment to the United States Constitution.

I. Background Facts and Proceedings

An Iowa Department of Natural Resources conservation officer was

patrolling Big Spirit Lake during ice-fishing season when he saw a vehicle

headed from the frozen lake towards a boat ramp. The officer drove to the ramp

and parked behind a stopped but running vehicle driven by Kip Bryan. At the

time, Bryan was speaking to a friend in a vehicle parked adjacent to him. The

officer approached Bryan. He discerned signs of intoxication, administered a

preliminary breath test and field sobriety tests, and arrested Bryan for operating a

motor vehicle while intoxicated.

The State charged Bryan with operating a motor vehicle while intoxicated,

first offense. Bryan moved to suppress the test results. Following a hearing, the

district court denied the motion. Bryan stipulated to a trial on the minutes of

testimony. The district court found him guilty and imposed judgment and

sentence. This appeal followed.

II. Analysis

Bryan contends the officer’s seizure of him violated “the United States and

Iowa Constitutions.” The State counters that Bryan failed to preserve error on his

claim under the Iowa Constitution and there was no “seizure” under the Fourth

Amendment to the United States Constitution.
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We address the error preservation argument first. Bryan failed to cite the

state constitution in his district court argument in favor of finding a seizure.1

Additionally, the district court did not decide the suppression motion under the

state constitution. Accordingly, we conclude error was not preserved. See Bank

of America, N.A. v. Schulte, 843 N.W.2d 876, 884 (Iowa 2014) (“[T]he district

court did not address any constitutional claims raised by [the parties]. [The

parties] did not file a rule 1.904 motion with the district court for a ruling on these

issues. Error has not been preserved for appellate review.”); State v. Iowa Dist.

Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011) (confining analysis to the United

States Constitution where applicant did not cite state constitution, district court

issued a ruling only addressing United States Constitution, and applicant failed to

file a motion to enlarge the findings).

We turn to Bryan’s argument under the United States Constitution,

reviewing the record de novo. Wilkes, 756 N.W.2d at 841. The Fourth

Amendment to the United States Constitution protects against unreasonable

searches and seizures. U.S. Const. amend. IV. “[F]or the Fourth Amendment to

apply . . . , there must first be a ‘seizure.’” Wilkes, 756 N.W.2d at 842. “If no

such seizure occurred, the motion to suppress is without merit.” Id. at 841.

“[N]ot all personal intercourse between the police and citizens involve

seizures.” Id. at 842 (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). Factors

1
In his trial brief, Bryan asserted, “[T]here was [no] seizure so as to implicate 4th
Amendment protections.” The Iowa precedent he cited in this portion of his argument
decided the issue under the Fourth Amendment. See State v. Wilkes, 756 N.W.2d 838,
841 (Iowa 2008); State v. Harlan, 301 N.W.2d 717, 718 (Iowa 1981). Although he also
cited an unpublished opinion of this court in which the state constitutional issue was
raised, the opinion was decided under the Fourth Amendment, and Bryan exclusively
quoted its Fourth Amendment holding.
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pointing to a seizure include: “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” Id. at 842-43 (quoting United States v.

Mendenhall, 446 U.S. 544, 554 (1980)). On our de novo review of the record, we

agree with the district court that there was no seizure under the Fourth

Amendment.

The officer testified he parked approximately “18 to 20 feet” behind

Bryan’s vehicle, “far back enough” to allow him to see the license plate of Bryan’s

vehicle. While Bryan disputed this assertion, testifying the officer’s vehicle was

only “a couple feet” behind him, the district court found the officer’s testimony

more persuasive. The court cited the officer’s explanation for parking a good

distance behind and surmised, “[I]t is reasonable that [the officer] would have

wanted to obtain the information on the license plate before approaching Mr.

Bryan’s vehicle.” We give weight to this resolution of conflicting evidence in light

of the district court’s opportunity to evaluate witness credibility. See State v.

Pals, 805 N.W.2d 767, 771 (Iowa 2011).

The officer further testified there was nothing preventing Bryan from

driving his vehicle forward, turning around, and leaving the area. See Wilkes,

756 N.W.2d at 844 (“[I]f the police car wholly blocks the defendant’s ability to

leave, then an encounter cannot be considered consensual, but where egress

was only slightly restricted, with approximately ten to twenty feet between the two

vehicles, the positioning of the vehicles does not create a detention.” (citing

People v. Cascio, 932 P.2d 1381, 1386-87 (Colo. 1997))). While the officer
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admitted he had no intent to let Bryan leave the scene, his subjective intent is not

controlling. See id. at 843. “[O]bjective indices of police coercion must be

present to convert an encounter between police and citizens into a seizure.” Id.;

see also State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981) (“Once there is a

seizure, it must be founded on an objective justification.”).

Those objective indices were largely absent. The officer left his headlights

on but did not activate his emergency lights. See Wilkes, 756 N.W.2d at 843

(“[T]he use of ordinary headlights at night is simply not coercive in the same

manner as the activation of emergency lights which invoke police authority and

imply a police command to stop and remain.”); Harlan, 301 N.W.2d at 720

(finding no seizure in part because officer “did not turn on his red or yellow

flashers but rather exited his car and walked up to” the defendant’s car). Bryan’s

friend had no inkling the officer’s vehicle was a law enforcement vehicle.

While the officer was in uniform and equipped with a gun, Bryan testified

he could not tell he was a law enforcement officer until he approached the

window of his vehicle. See State v. Lowe, 812 N.W.2d 554, 570 (Iowa 2012)

(“[T]he fact that an officer shows a badge, is ‘visibly armed,’ or is in uniform has

been given little weight in the analysis.”); Wilkes, 756 N.W.2d at 844 (“While the

fact that [the officer] was in uniform is not entirely irrelevant, the United States

Supreme Court has downplayed the significance of a police uniform as a factor in

determining whether an encounter is a seizure.”).

The officer’s initial interaction was “[v]ery casual,” similar to the way he

approached fishermen “a thousand times a year.” See Harlan, 301 N.W.2d at

720 (noting the officer’s initial observation of the defendant “was an innocuous
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police-citizen encounter that did not implicate the Fourth Amendment”). Bryan

conceded he rolled down the window of his truck without being asked to do so.

The officer did not touch Bryan. See Wilkes, 756 N.W.2d at 842-44 (citing the

use of physical force or show of authority as factors indicating a seizure); Harlan,

301 N.W.2d at 719 (“If an officer takes hold of a suspect, a seizure has

occurred.”). He did not raise his voice—a fact confirmed by Bryan’s friend—and

he used no amplification device to gain Bryan’s attention. Because he believed

Bryan had been ice fishing on the lake, he simply approached the car, sought

confirmation of this belief, and asked to see Bryan’s fishing license. See Lowe,

812 N.W.2d at 570 (“Generally, police questioning, and the responses it elicits,

does not constitute a seizure.” (internal citations and quotation marks omitted)).

He was the only officer involved in the encounter. See Wilkes, 756 N.W.2d at

842 (citing “the threatening presence of several officers” as a factor indicating a

seizure).

We conclude there was no seizure under the Fourth Amendment.

Accordingly, the district court appropriately denied Bryan’s motion to suppress.

We affirm Bryan’s judgment and sentence for operating a motor vehicle while

intoxicated (first offense).

AFFIRMED.