State v. Fogg
| Decision Date | 20 December 2019 |
| Docket Number | No. 18-0483,18-0483 |
| Citation | 936 N.W.2d 664 |
| Parties | STATE of Iowa, Appellee, v. Kari Lee FOGG, Appellant. |
| Court | Iowa Supreme Court |
Mark C. Smith, State Appellate Defender (until withdrawal), and Melinda J. Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Genevieve Reinkoester, Assistant Attorney General, Dan Kolacia, County Attorney, and Matthew Speers, Assistant County Attorney, for appellee.
A police officer saw a vehicle driving suspiciously for several minutes in a residential neighborhood at night at a snail’s pace of ten miles per hour. After the vehicle entered a one-lane alley that ran between two streets and then did not emerge from the alley, the officer approached the stopped vehicle from the front without activating flashers. He stopped his own patrol car at least twenty feet away, turned the lights down to low beam, got out of his patrol car, and walked up to the driver to engage in a conversation. This resulted in the officer learning that the driver was under the influence of alcohol. Eventually it resulted in the driver’s conviction for driving while intoxicated.
The issue we must decide on appeal is whether the driver was seized for purposes of the Fourth Amendment to the United States Constitution or article I, section 8 of the Iowa Constitution when the officer approached her on foot that evening. We agree with the district court and the court of appeals that she was not and accordingly affirm the judgment of the district court and the decision of the court of appeals.
At about 9:50 p.m. on October 10, 2017, Officer Michael Frazier of the Boone Police Department was patrolling in residential neighborhoods of the city east of the hospital area. He noticed that a silver Hyundai was going very slowly—about ten miles per hour in a twenty-five-mile-per-hour zone. After about three or four minutes, he saw the Hyundai proceed north from Second Street into an alley that paralleled Clinton and Jackson Streets. The alley is wide enough for one lane of traffic and has various driveways that access it. Officer Frazier proceeded up Clinton Street to Third Street and waited for the vehicle to exit the alley. When the vehicle did not come out of the alley, Officer Frazier turned east on Third Street where he saw the Hyundai "had stopped in the mid-block in the alley and just kind of parked there." He "saw the vehicle was still sitting there not knowing if it was occupied or not." Officer Frazier decided to turn south into the alley and pull in front of the Hyundai "to see what was going on." The lights of the Hyundai were still on, but Officer Frazier could not tell whether anyone was in the vehicle until he pulled into the alley.
Officer Frazier did not activate his flashers. Instead, he parked his patrol car at least twenty feet from the Hyundai, left his own low beams on, got out, and walked up to the Hyundai. At that point, the driver of the Hyundai, Kari Fogg, opened her door. Officer Frazier asked "whether everything was okay, what was going on." Fogg responded that "she lived in the area and was checking to see if the alley was crooked or something to that effect, that she had to report to the city."
Officer Frazier smelled a strong odor of an alcoholic beverage coming from the vehicle. He also noticed red and watery eyes and some slightly slurred speech. He asked Fogg how much she had had to drink that evening, and she initially stated "nothing." Soon thereafter she changed her answer and said she had had two glasses of wine. Fogg was asked to perform some field sobriety tests. She failed them. Fogg refused a preliminary breath test and was arrested for operating while intoxicated (OWI). At the jail, Fogg refused a chemical test.
Fogg was charged with OWI, first offense, in violation of Iowa Code section 321J.2. See Iowa Code § 321J.2(1)(a ), (2)(a ) (2017). Fogg moved to suppress all evidence derived from Officer Frazier’s encounter with her in the alley, alleging that she was seized without reasonable suspicion in violation of both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. An evidentiary hearing was held. Officer Frazier testified, and an overhead photograph of the alley was introduced into evidence. On the photograph, Officer Frazier marked where the Hyundai and his patrol car were parked.
Officer Frazier testified that the vehicle had been driving suspiciously and that it was suspicious for it to be parked in an alley. During the summer, Officer Frazier had taken seventeen burglary reports within the city himself and probably six or so were from that area.
The alley is a public alley. Traffic is permitted in either direction, but it is only wide enough for one vehicle to proceed at a time without driving into someone’s yard. Once Officer Frazier pulled in with his patrol car and stopped a couple of car lengths in front of Fogg’s Hyundai, for Fogg to leave she would have had to back up about 125 feet to exit the alley or turn around in a driveway that fronted on the alley. Fogg’s vehicle was parked near one of those driveways that led into a garage. It also turned out that she lived only about a block from where she had stopped the Hyundai in the alley.
The district court denied Fogg’s motion to suppress. While acknowledging that "[i]t’s a close call," the court found that Fogg had not been seized at the time Officer Frazier stopped in the alley and walked up to her vehicle. The court also alternatively found that Officer Frazier had reasonable suspicion that criminal activity may have been afoot and would have been justified in stopping Fogg’s vehicle anyway.
Following a jury trial, Fogg was convicted of OWI, first offense and sentenced to two days in jail plus a fine and surcharges. See Iowa Code § 321J.2(3). Fogg appealed, arguing that her motion to suppress should have been granted and that her counsel had been ineffective in failing to object to certain statements made by the prosecutor during rebuttal closing argument.
We transferred the case to the court of appeals. That court affirmed the conviction. Based on a de novo review of the record and consideration of the totality of the circumstances, the court of appeals concluded that "Fogg was not subjected to a seizure in the constitutional sense." The court also determined that Fogg’s trial counsel had not been ineffective in failing to object to the prosecutor’s statements during rebuttal closing argument. We granted Fogg’s application for further review.1
Fogg argues that she was seized on October 10, 2017, in violation of her rights under the Fourth Amendment and article I, section 8. However, she does not argue for a separate Iowa constitutional analysis.
When a party does not suggest a framework for analyzing the Iowa Constitution that is different from the framework utilized under the United States Constitution, we apply the general federal framework. However, we reserve the right to apply the federal framework in a different manner.
In re Det. of Anderson , 895 N.W.2d 131, 139 (Iowa 2017) (citation omitted).
The threshold question under both constitutions is often whether there has been a seizure: "In order for the Fourth Amendment [or article I, section 8 ] to apply in this case, there must first be a ‘seizure.’ " State v. Wilkes , 756 N.W.2d 838, 842 (Iowa 2008).
Hence, we must determine whether Officer Frazier "seized" Fogg prior to reasonably suspecting Fogg of operating a motor vehicle while intoxicated. If no seizure occurred, a motion to suppress on that ground is without merit.
The defendant has the burden of proof as to whether a seizure occurred. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b), at 58–59 (5th ed. 2012) [hereinafter LaFave, Search and Seizure ] ("The defendant ... has the burden of proof as to ... whether a seizure occurred."). We explored the question of whether a seizure had occurred extensively in Wilkes , 756 N.W.2d at 841–45. The facts of Wilkes are somewhat similar to those here—a vehicle was parked at night, and a police officer decided to investigate, pulling his patrol car near to the vehicle, getting out, and walking up to the driver side of the vehicle.
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