In re Prop. Seized from Pardee

• Decision Date: 25 February 2015
• Docket Number: No. 14–0029.,14–0029.
• Citation: 863 N.W.2d 35 (Table)
• Parties: In the Matter of Property Seized from Robert PARDEE, Robert Pardee, Appellant.
• Court: Iowa Court of Appeals

863 N.W.2d 35 (Table)

In the Matter of Property Seized from Robert PARDEE Robert Pardee, Appellant.

No. 14–0029.

Court of Appeals of Iowa.

Feb. 25, 2015.

Nicholas Sarcone of Stowers & Sarcone P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Rebecca L. Petig, County Attorney, for appellee State.

Heard by VOGEL, P.J., and DOYLE and McDONALD, JJ.

Opinion

DOYLE, J.

In Iowa, a vehicle can be stopped for the most minor of traffic or equipment infractions. See State v. Harrison, 846 N.W.2d 362, 365 (Iowa 2014). Out-of-state plated vehicles from “drug source states” are targeted for such stops by Iowa State Patrol troopers assigned to criminal interdiction teams patrolling I80 in eastern and western Iowa.¹ Occupants of such vehicles are automatically suspected of illicit drug or other criminal activity, and the interdiction investigation begins even before the vehicle is pulled over. Such is the case here.

Robert Pardee appeals the district court's order that forfeits to the State $33,100 in cash found in his possession at the time of his arrest on drug charges. He contends the search conducted leading to the discovery of the cash was illegal, and the court therefore erred in denying his motion to suppress all evidence and information obtained from and as a result of the search. Without that evidence, Pardee argues the State failed to present sufficient evidence to support its forfeiture.

The State responds that Pardee failed to follow the Iowa Rules of Appellate Procedure in addressing the district court's ruling denying Pardee's motion to suppress on the basis of res judicata. The State maintains Pardee therefore waived review of the court's ruling denying his motion to suppress. Additionally, the State argues the court correctly denied Pardee's motion to suppress on the basis of res judicata, asserting, as found by the district court, that the ruling denying Pardee's similar motion to suppress in his criminal case precluded Pardee from relitigating the matter in the present case. Alternatively, the State argues the court also correctly denied Pardee's motion to suppress on its merits.

Because we conclude Pardee adequately challenged the court's res judicata ruling and the court erred in denying his motion to suppress based upon the doctrine of res judicata, we address the court's ruling denying his motion to suppress on its merits. Upon our review, we agree with the district court that Pardee's motion to suppress failed on its merits under existing Iowa law. Consequently, we affirm the district court's ultimate conclusion that the funds were properly subject to forfeiture as proceeds from illegal activity under Iowa Code chapter 809A (2011).

I. Background Facts and Proceedings.

A reasonable fact-finder could find the following facts from the record in this case. On June 13, 2012, an Iowa State trooper, who was part of a criminal drug-interdiction program, was sitting in his patrol car parked in a median on I–80 in Poweshiek County about three miles from the Grinnell exit. As a west-bound California-plated car drove past him, the trooper observed that “the driver would not look at [him,] and also [the driver] had his hand over his face.” The trooper pulled out and caught up to the car, and when the trooper pulled up next to it, “the driver looked over at [him] and then quickly looked away and did not look at [him] again as [he] was traveling next to him.” Additionally, the trooper observed the driver had moved his hands “to the [ten] and [twenty] position on the steering wheel.” The trooper then pulled in behind the car, and he observed two traffic violations: (1) a non-working taillight on the vehicle and (2) following the semi in front of it too closely. The trooper subsequently stopped the car, in which Robert Pardee was a passenger.

The trooper went to the car and spoke with both the driver and Pardee. The trooper noticed they exhibited nervous behavior and that the driver's hand was shaking when he gave the trooper his license. The trooper also observed Pardee's carotid artery was pulsing. Additionally, the trooper noticed “the strong odor of some type of masking agent” and observed a can of a popular air sanitizer and freshener. The trooper also observed items in the car, such as trash and sleeping bags, that led him to believe the men were “traveling hard, not taking any time to throw away their trash and make any unnecessary stops.”

The trooper advised the driver he was only giving him a warning. The trooper then asked the driver to come to his patrol car, though the trooper admitted this was not necessary for him to complete the warning-citation forms. Pardee remained in the stopped car.

While the trooper and the driver were in the patrol car, the trooper engaged the driver in conversation unrelated to the traffic violations. Specifically, as part of his interdiction investigation, the trooper questioned the driver about his and Pardee's travel plans, the subject of which was completely unrelated to the traffic violations he observed. During the conversation, the trooper filled out the warning citations, and he also ran a criminal history check and learned that both men had criminal drug histories.

The trooper began printing the citations, and he left the patrol car to give Pardee his driver's license back. He then engaged Pardee in conversation to determine whether or not he would give answers consistent with the driver's answers. Again, this conversation was solely for the purpose of the trooper's interdiction investigation and not for purposes related to the actual traffic stop. The trooper found the driver and Pardee's “actions were inconsistent with the motoring public” and at that point, based upon the “lived-in look in the vehicle,” the “general nervousness of the occupants,” the “initial information from when [the trooper initially] observed the vehicle in transit” and that the driver had obscured his face, the occupants' prior “criminal histories for drug-related stuff, the strong odor of air freshener,” the lack of the “[c]ost effectiveness of the trip,” along with the trooper's training and experience, the trooper had a “suspicion of some sort of criminal activity.” Nevertheless, the trooper returned to the patrol car, gave the driver back his information and license, had him sign the warnings, and advised the driver he was free to go. At that point, the stop had lasted approximately twenty-five minutes.

The driver then got out of the patrol car, but before shutting the door, he leaned back in and asked the trooper if he could “hang out there for a moment and stretch [his] legs.” The trooper told him he could, and the trooper got out of the patrol car too. The trooper then immediately asked the driver if he could ask him a couple more questions, and the driver answered: “Sure.” The following exchange occurred:

Q. You don't have anything illegal in the car, do ya? A. No.

Q. Any large amounts of marijuana? A. No.

Q. Large amounts of cocaine? A. No.

Q. Large amounts of heroin? A. No.

Q. Large amounts of methamphetamine? A. No.

Q. Large amounts of money? A. No.

The trooper asked the driver if he could search his car, and the driver hesitated, telling the trooper he “would prefer if [he] didn't” because he “wanted to get going.” The trooper told the driver he did not have to let him search the car, and he asked the driver if he would be willing to wait for a canine unit to come run around his vehicle, advising the driver the dog was “down the road here, not very far.” The driver told the trooper he just “really wan[ted] to get going.” The trooper noted the driver's earlier statement that he wanted to hang out for a moment and stretch his legs, and he again asked the driver if he wanted to wait for the dog. The driver told him “no.” The trooper then stated: “If you don't wanna wait for a dog, and you don't wanna let me search, I'm gonna detain ya, and I'm gonna call for a dog to sniff your car, okay?” The driver answered that the trooper was going to detain him if he said no, and the trooper affirmed that “either way” he was going “to run a dog.”

A canine unit arrived approximately two minutes later, and the dog inspected the vehicle about a minute later. The dog alerted to the odor of narcotics in the vehicle. On that basis, the vehicle and its contents were subsequently searched by five troopers, and a small amount of marijuana, along with $33,100 in cash, and drug ledgers listing amounts sold, their prices, and the names of their buyers were found and seized. Thereafter, the driver and Pardee were arrested.

Pardee was subsequently charged with possession of marijuana, a serious misdemeanor, in violation of Iowa Code section 124.401(5). In that case, Pardee moved to suppress the evidence seized from the search of the vehicle and the statements made by Pardee during the traffic stop, asserting violations of the Iowa and United States Constitutions. Ultimately, the district court denied the motion, finding the totality of the circumstances established articulable, reasonable suspicion for the trooper to detain Pardee and conduct further investigation by calling for a canine unit. The court also found that the evidence presented established the reliability of the canine unit.

While the criminal matter was pending, the State filed an “in rem forfeiture complaint” seeking to forfeit the currency obtained from the search in the amount of $33,100. The complaint referred to the report attached thereto as the conduct giving rise to the forfeiture action. The report attached was the incident form completed by the trooper, which included the trooper's account of the stop and the discovery of the marijuana, money, and drug ledgers.

Pardee subsequently filed in the forfeiture action a motion to suppress the evidence and information obtained from and as a result of the stop for essentially the same reasons asserted in the criminal manner, including lack of...