State v. Feregrino

• Decision Date: 03 October 2008
• Docket Number: No. 07-0236.,07-0236.
• Citation: 756 N.W.2d 700
• Parties: STATE of Iowa, Appellee, v. John FEREGRINO, Jr., Appellant.
• Court: Iowa Supreme Court

756 N.W.2d 700

STATE of Iowa, Appellee, v. John FEREGRINO, Jr., Appellant.

No. 07-0236.

Supreme Court of Iowa.

October 3, 2008.

Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Kyle Jones and Christine Shockey, Assistant County Attorneys, for appellee.

APPEL, Justice.

In this case, a criminal defendant raises two constitutional questions arising out of his conviction for driving a motor vehicle while intoxicated. First, the defendant challenges the validity of an investigatory stop based on a violation of a local noise ordinance which he claims is unconstitutionally vague. Second, he challenges the validity of his jury-trial waiver where he signed a written waiver explaining in some detail the consequences of the waiver, but where the oral colloquy before the court was conclusory in nature. On further review, we hold that the defendant's claims are without merit on the current record.

I. Factual and Procedural Background.

At about four a.m. on July 4, 2006, Carter Lake Police Officer Ron Hansen heard loud music emanating from a motor vehicle from an approximate distance of one hundred feet. The officer activated his emergency lights and pulled the vehicle over to the side of the road. The officer advised the driver, John Feregrino, Jr., that he was stopped for violation of a municipal noise ordinance.

During the stop, Hansen detected a strong odor of alcohol coming from Feregrino. Hansen also noticed that Feregrino's eyes were bloodshot and watery and that his speech was slurred. Hansen performed the horizontal gaze nystagmus test, which indicated intoxication. Although Feregrino consented to a preliminary breath test, no result was obtained due to Feregrino's inability or unwillingness to exhale. Hansen placed Feregrino under arrest for operating a motor vehicle while intoxicated (OWI). The results of a Data-Master test later showed Feregrino's blood-alcohol level to be 0.199.

Feregrino was subsequently charged with first offense OWI in violation of Iowa Code section 321J.2 (2005) and violation of the municipal noise ordinance. He filed a motion to suppress the evidence of his intoxication, claiming that the officer lacked probable cause or reasonable suspicion to stop Feregrino's vehicle because the noise ordinance which allegedly justified the stop was unconstitutionally vague. The district court rejected this contention.

Prior to trial on November 14, Feregrino signed a written waiver of his right to a jury trial. The written waiver stated: (1) he had been fully advised by his attorney that he had a right to be tried by a twelve person jury under the state and federal constitutions and the Iowa Rules of Criminal Procedure; (2) that by waiving a jury trial he would no longer be able to help in the selection of a jury; (3) that unanimity of twelve persons will no longer be required for conviction; and (4) that his case would be decided by a single judge. For reasons not revealed in the record, the written waiver was not filed until November 29. Feregrino does not dispute, however, that he signed the waiver prior to his bench trial.

Also prior to trial, the district court engaged in a short colloquy with the defendant:

THE COURT: Mr. Feregrino, you've had a sufficient amount of time to talk to [defense counsel] Mr. Heithoff?

THE DEFENDANT: Uh-huh, yes, sir.

THE COURT: And you wish to waive a jury trial and submit the case as indicated by Mr. Heithoff?

THE DEFENDANT: Yes, sir.

THE COURT: Very well.

The matter proceeded to trial before the district court. Feregrino was convicted of first offense OWI. The district court dismissed the charge of violating the noise ordinance because someone other than the arresting officer had improperly amended the original citation.

Feregrino appealed his conviction, reasserting his vagueness argument. Feregrino also asserted an ineffective-assistance-of-counsel claim, arguing that his jury-trial waiver did not meet the standards this court established in State v. Stallings, 658 N.W.2d 106, 111 (Iowa 2003). Relying on Stallings, Feregrino further claimed that prejudice should be presumed because of this structural defect.

We transferred the case to the court of appeals. The court of appeals reversed Feregrino's conviction, finding ineffective assistance of counsel. We granted further review.

II. Standard of Review.

This court engages in de novo review of constitutional claims arising from motions to suppress. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). The adequacy of a jury-trial waiver is a mixed question of fact and law which we decide de novo. Stallings, 658 N.W.2d at 108. We also consider a claim of ineffective assistance of counsel de novo. Id.

III. Discussion.

A. Constitutionality of Noise Ordinance. Feregrino's first claim is that the evidence of intoxication introduced at trial was unlawfully obtained. According to Feregrino, the underlying noise ordinance, which was the basis of Officer Hansen's stop, is so vague that it violates due process of law. As a result, Feregrino argues that the evidence of intoxication is fruit of the poisonous tree and should have been excluded at trial.

The ordinance in question, Carter Lake Municipal Ordinance 55.12(cc), provides:

The following circumstances are considered per se violations as being loud, raucous, and disagreeable noises causing disturbance to the general public and a violation of this Chapter:

a. Noise emanating from a motor vehicle that can be heard from a distance of one-hundred (100) feet or more.

The Due Process Clauses of the Fourteenth Amendment of the United States Constitution and Article I, section 9 of the Iowa Constitution prohibit enforcement of statutes that are so vague that they do not provide citizens with fair warning of what conduct is prohibited and encourage discriminatory law enforcement.¹ Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2299-300, 33 L.Ed.2d 222, 227-28 (1972); State v. Todd, 468 N.W.2d 462, 465 (Iowa 1991). In addition, where a vague statute abuts upon sensitive areas protected by the First Amendment, care must be taken to ensure that criminal statutes do not cause persons to steer far wider of the unlawful zone in order to avoid criminal prosecution. See Grayned, 408 U.S. at 109, 92 S.Ct. at 2299, 33 L.Ed.2d at 228.

In this case, Feregrino does not claim that the ordinance impinges upon his First Amendment rights. His only claim is that the ordinance is so vague that it does not provide reasonable notice to him and encourages arbitrary enforcement. As a result, we do not consider any potential overbreadth challenge. We only consider whether the Carter Lake noise ordinance was unduly vague as to him.

We reject the claim which Feregrino advances. Feregrino was charged under the provision of the ordinance that per se prohibits "[n]oise emanating from a motor vehicle that can be heard from a distance of one-hundred (100) feet or more." Carter Lake Mun. Code § 55.12(cc). There is nothing unconstitutionally vague about this provision of the Carter Lake ordinance.

A person of ordinary understanding would know that cranking up the car radio to extraordinarily loud levels will expose the operator to a citation for violation of the ordinance. See Davis v. State, 272 Ga. 818, 537 S.E.2d 327, 329 (2000); State v. Medel, 139 Idaho 498, 80 P.3d 1099, 1103 (Ct.App.2003); Holland v. City of Tacoma, 90 Wash.App. 533, 954 P.2d 290, 295 (1998). Turning up the volume in a car radio so that it can be heard one hundred feet away is far louder than needed to be heard by car occupants and cannot be confused with ordinary use.

It may not be easy to measure whether noise emanating from a vehicle reaches one hundred feet, but this is not a problem of vagueness. Indeed, if the one-hundred-foot requirement were stricken, the resulting ordinance would give less notice, not more to the ordinary person. Moore v. City of Montgomery, 720 So.2d 1030, 1032 (Ala.Crim.App.1998) (noting distance standards provide explicit guidelines to those charged with enforcing a noise ordinance). What Feregrino raises is not a question of vagueness, but a problem of proof that inheres in any criminal statute that incorporates explicit measurements into its substantive elements. Whether Officer Hansen could hear the vehicle at a distance of one hundred feet presents a question of fact to be attacked through cross-examination and the adversary process, not a legal issue to be argued to the court.

The per se prong of the ordinance also is not so vague as to encourage discriminatory enforcement. The prong under which Feregrino was charged does not apply to particularly-defined types of noise: it applies if a motor vehicle operator is blasting the music of Beethoven or Rihanna, the latest from a Hawkeye, Cyclone, or Panther athletic contest, or the details of a special deal on vinyl home siding. The fact that the ordinance focuses on all loud noises rather than specific loud noises, for vagueness purposes, is a strength rather than a weakness. See Thelen v. State, 272 Ga. 81, 526 S.E.2d 60, 62 (2000) (noting use of vague and subjective terms such as "unnecessary," "unusual," and "annoying" in noise ordinance renders ordinance unconstitutional).² The officer in this case only needs to determine the objective fact of whether the volume of the noise is sufficient to be heard one hundred feet from the vehicle, rather than exercising subjective judgment concerning the type of noise involved. Davis, 537 S.E.2d at 329; Holland, 954 P.2d at 295.

For the above reasons, we conclude that the provision of the Carter Lake noise ordinance under which Feregrino was stopped is not so vague as to violate due process.

B. ...