State v. Keehner

• Decision Date: 15 June 1988
• Docket Number: No. 87-1012,87-1012
• Citation: 425 N.W.2d 41
• Parties: STATE of Iowa, Appellant, v. Gary L. KEEHNER, Appellee.
• Court: Iowa Supreme Court

Page 41

425 N.W.2d 41

STATE of Iowa, Appellant, v. Gary L. KEEHNER, Appellee.

No. 87-1012.

Supreme Court of Iowa.

June 15, 1988.

As Corrected June 30, 1988 and Aug. 15, 1988.

As Corrected Aug. 18, 1988.

Thomas J. Miller, Atty. Gen., and Bruce Kempkes, Asst. Atty. Gen., and John W. Hofmeyer III, Asst. Co. Atty., for appellant.

R.L. Van Veldhuizen, Oelwein, for appellee.

Considered en banc.

SNELL, Justice.

On February 24, 1987, a judicial magistrate found defendant, Gary L. Keehner, guilty of carrying a loaded gun in a vehicle on a public highway. See Iowa Code § 110.36 (1987). Keehner's motion to suppress evidence regarding the charge was denied. Keehner appealed his conviction to the district court. See Iowa R.Crim.P. 54. That court found merit in Keehner's suppression arguments, granted the motion and reversed his conviction because of insufficient evidence. We then granted the State's application for discretionary review. See Iowa Code § 814.5(2) (1987).

Keehner grounded his suppression motion in what he characterized as a seizure which violated his rights as secured by state and federal constitutions. See U.S. Const. amends. IV, XIV; Iowa Const. art. 1, § 8. This illegal seizure occurred, he contends, when Conservation Officer Keith Rowley stopped Keehner's pickup truck and asked to see his hunting license. Subsequently, it was discovered that Keehner's gun contained shells in the magazine, contrary to statutory prohibition. See Iowa Code § 110.36 (1987). Officer Rowley then issued Keehner a citation for the violation, and this action began.

The question now raised is what standard is applicable to an investigatory stop of a motor vehicle made by a conservation officer in performing his job. Officer Rowley conceded that at the time of the stop he did not have specific and articulable cause to believe that criminal activity was afoot. Consequently, Keehner argues that the stop was unconstitutionally made and the seized evidence properly suppressed, necessitating his acquittal.

Officer Rowley's testimony indicated that he was not making random, indiscriminate stops of the general public nor was this a roadblock stop of all vehicles. See generally State v. Hilleshiem, 291 N.W.2d 314 (Iowa 1980). Rowley was not acting on some subjective theory that a specific crime was being committed that justified the stop. Rather, his testimony showed a specific reason for stopping Keehner and the background information leading up to it.

From December 13, 1986, through January 1, 1987, James Lein, a farmer living in Smithfield Township in Fayette County, observed one or two pickup trucks on his or his neighbor's property nearly every day. Around dusk on Saturday, December 13, he saw four men in trucks, that were equipped with citizens band antennas, on his property. One person, dressed in white, had a scope in the window and was "glassing" the area. It appeared to Lein they were fox hunters. Later in the day, he saw the same pickup with another parked on the road. Four people were there. One person had a scope aimed out into the field where another person was walking dressed in a white uniform carrying a rifle. Both pickups had citizens band antennas on them. (Iowa Code section 109.24 prohibits use of a mobile phone transmitter to communicate with other hunters while hunting.)

Lein obtained the license plate numbers of the pickup trucks, one a Chevy, the other a Ford. It was subsequently determined that the former belonged to Keehner. Lein checked with his neighbors and found that none had authorized hunting on their properties. He called Officer Rowley's home, failed to reach him, and then called the sheriff's office. The incident and license numbers were described to the personnel at the sheriff's office, Lein telling them "there was alleged poaching in process." He was told they would get in touch with the conservation department. On Wednesday of the following week Lien personally gave Officer Rowley the same information. He also called him other times before the first of the year when he saw the pickup in the area. The last time he talked to Officer Rowley was December 23rd.

Keith Rowley has been a conservation officer for twenty-one years, having received the same training as do police officers at the Iowa Law Enforcement Academy. On December 2, he received a tip hotline report alleging illegal deer hunting by Keehner. He was aware of the communication by Lien to the sheriff's department. See United States v. Cooper, 733 F.2d 1360, 1364-65 (10th Cir.) (officer's knowledge of defendant's circumstantial links to prior suspicious activity in area of stop relevant in reasonableness balance), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

On January 1, 1987, Officer Rowley was working about four miles from Lien's residence. He observed a dark pickup proceeding very slowly on the road about ten o'clock in the morning. He thought it was the one he was looking for. When the pickup stopped at the side of the road, Officer Rowley circled around the section. In proceeding toward the pickup again, he saw that it was still stopped. With a spy scope, he determined someone in the pickup was "glassing the field." The area was a prairie frequented by fox hunters. When Officer Rowley came to an intersection, the pickup started moving toward him. Officer Rowley then put on his red lights and stopped the pickup.

The pickup was a late model Chevrolet, black in color, with additional head lights on the front. Officer Rowley recognized it as Keehner's pickup from having seen it before. Officer Rowley got out of his vehicle, approached the cab of Keehner's pickup, saw him turn on a portable tape recorder and heard him say "I have been advised to do this." Two dead red fox were clearly visible in the pickup box. On the pickup seat were a spotting scope, a pair of binoculars and some white clothing.

Officer Rowley asked to see Keehner's hunting license or his fur harvester's license. Keehner refused. Officer Rowley asked again and was met with the question: "First of all, why did you stop me." Officer Rowley pointed out that Keehner had been stopped by the roadside and added that he thought he was hunting. Keehner told him he lived nearby. After being told it takes a fur harvester's license to possess fox, Keehner produced a license.

Officer Rowley then said he was going to check his gun to see if it was loaded. Keehner's cased gun was lying on the passenger's seat. Officer Rowley stated that he had a right as an officer to inspect a hunter. Keehner immediately argued that the officer didn't have probable cause to stop him. He further stated that stopping his vehicle and "glassing" the section doesn't mean he was hunting. Keehner refused to show his gun so Officer Rowley suggested that Keehner park his pickup and accompany him to get a search warrant. Keehner quarreled about driving his pickup back to the house, probable cause to stop him, checking his gun case, wearing a seat belt, and that Rowley was coming up with reasons after he stopped him.

Rowley finally said there are all sorts of things they can argue. Keehner said: "No I am not going to argue, as long as I have it on tape, because we are going to end up going to court, because I've got shells in--not loaded into the chamber, it is not bolted, but there are shells in the magazine." Keehner then showed him the gun. Rowley told him to give him one of the shells. Keehner said: "Here's a dirty one. Hah."

On appeal from the magistrate's conviction, the district court found that the conduct observed by officer Rowley was consistent with bird watching, sightseeing, checking on crops, hunting and the identification of favorable areas to hunt in at a later time. The court said:

"Based on his observations, it can fairly be said officer Rowley did not stop an individual who was hunting in order to determine if the individual was hunting legally. Rather, the officer stopped an individual who was driving a motor vehicle to determine if the individual was hunting and then, if he was hunting, to see if he was doing so legally."

The district court concluded that Officer Rowley did not have adequate grounds to reasonably believe that Keehner was hunting, legally or illegally. This finding preempted a consideration of the constitutionality of the stop, the validity of the search, and the issue of consent to search.

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court struck as violative of the fourth amendment random automotive stops that are supported by neither probable cause nor reasonable suspicion. Justices Blackman and Powell, in a concurring opinion, made the following comments regarding their understanding of the majority opinion:

And I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court's balancing process, and the value factors under consideration, would be quite different.

Id. at 664, 99 S.Ct. at 1401, 59 L.Ed.2d at 674. Prouse also reiterated the pertinent analytical framework, noting that the constitutional permissibility of a particular law enforcement practice is determined by balancing its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests. Id. at 654, 99 S.Ct. at 1396, 59 L.Ed.2d at 667-68. The purpose of this balance is to assure that the individual's reasonable expectation of privacy is not subject to the unbridled discretion of the officer in the field. Id. at 655, 99 S.Ct. at 1396-97, 59 L.Ed.2d at 667.

In applying this framework, courts have generally required some quantum of individualized suspicion as a prerequisite to a constitutional search or seizure. United States v. Martinez-Fuerte, ...