GTSB Caselaw Update April, 2018 Presented by Christine Shockey, Assistant County Attorney Pottawattamie County Attorney s Office 227 South 6 th Street Council Bluffs, IA 51501 712-328-5649 (phone); 712-328-5753 (fax) e-mail (Christine Shockey): Christine.Shockey@pottcounty-ia.gov This material does not represent the opinions of the office of the Pottawattamie County Attorney or the Governor s Traffic Safety Bureau. Published opinions have National Reporter citations; unpublished opinions have the complete name of the defendant and the case number assigned by the judicial branch. In all instances, the complete text of the case should be consulted; the opinions can be located in the archives section of the judicial branch website. Cases and statutes can be viewed at www.iowacourts.gov www.legis.state.ia.us
SUPREME COURT CASES State v. Storm, 898 N.W.2d 140 (Iowa 6/30/17) No. 16-0362. Automobile exception to warrant requirement still valid. Defendant was stopped for a seatbelt violation when the officer smelled the odor of marijuana and searched the vehicle, yielding evidence of marijuana distribution. Defendant argued that because officers can obtain electronic search warrants by the side of the road, the automobile exception to the warrant requirement should be abandoned. Held that no procedure for electronic search warrants or process other than personal appearance before a judicial officer exists to obtain search warrants, and the automobile exception to the warrant requirement is still valid as the vehicle itself presents the exigency due to its mobility and the inherent dangers in prolonged roadside detentions while warrants are obtained. State v. Childs, 898 N.W.2d 177 (Iowa 6/30/17) No. 15-1578. Any amount of a prohibited drug in one s body violates OWI statute, regardless of whether the ability to drive is impaired. Defendant convicted of OWI after a urine drug screen detected a nonimpairing metabolite of marijuana in his urine, carboxy-thc. Held that 321J.2(1)(c) is not unconstitutionally overbroad by allowing conviction based solely on the presence of a nonimpairing metabolite in the defendant s urine without impairment, and policy arguments that the statute is too harsh should be directed to the legislature. The Court also noted that the harshness of the flat ban is ameliorated by the fact that the motorist would be asked to submit to chemical testing only after the officer performed a lawful traffic stop and had reasonable grounds to believe the driver was impaired. State v. Pettijohn, Jr., 899 N.W.2d 1 (Iowa 6/30/17) No. 14-0830. Breath test obtained pursuant to implied consent or as a search incident to arrest unconstitutional in boating while intoxicated case. Implied consent was invoked after defendant was arrested for Boating While Intoxicated in violation of 462A.14(1), and a breath test was obtained. Held that warrantless breath test incident to arrest based on need to gather evidence is contrary to the Iowa constitution and inconsistent with State v. Gaskins, 866 N.W.2d (Iowa 2015), because there is nothing a defendant can do to conceal or destroy the alcohol present in his blood, and the state s interest in collecting evidence expediently does not constitute adequate justification for the search. The Court also employed a totality of the circumstances approach to determine whether actual consent under statutorily implied consent is voluntary, and among the factors considered is whether the defendant is intoxicated, whether he was seized before submitting to the test, whether he was advised of his right to refuse, whether the implied consent advisory was misleading, and whether criminal or civil penalties would ensue. Held that because the defendant was intoxicated, transported to the police station, and advised of significant civil penalties for refusal to submit to testing, but not told that he could withhold consent or that there may be serious criminal penalties if he submitted to the test and failed it, his consent was not voluntary and the results of the breath test should have been suppressed. The Court also stated that, a person reading this decision should not jump to the conclusion that our analysis will make the statutory scheme governing the operation of a motor vehicle while under the influence unconstitutional. 2
State v. Martha Aracely Martinez, 896 N.W.2d 737 (Iowa 6/09/2017) No. 15-0671. Federal law preempts state prosecution for using false documents as evidence of employment authorization. Defendant illegally immigrated to Iowa from Mexico as an 11-year-old, was educated in Iowa schools, and is the mother of four children born in the United States. In 2003, she used a false birth certificate to obtain an Iowa driver s license, and renewed that license in 2008. In 2013, she used the false driver s license and a false social security card as evidence on an I-9 to obtain employment. That same year, she also received lawful temporary immigration status under the federal DACA program. In 2014, she obtained a driver s license under her own name. The DOT used facial recognition software to determine that her previous driver licenses were fraudulent. Defendant was subsequently charged with identity theft and forgery based upon the I-9 documents obtained from the employer. The Court analyzed the statutes in the context of facial and field preemption principles and concluded that Iowa s forgery statute pertaining to documents related to entry into or as evidence of authorized stay or employment is preempted by federal immigration law, and that the identity theft statute is preempted as applied to the defendant because it regulates fraud committed to allow work in violation of federal immigration law. State v. John William Ness, 907 N.W.2d 484, (Iowa 2/9/18) No. 17-0476. Admission of PBT results at trial result in reversal of conviction. Defendant drove himself to the office of his probation officer, who administered a PBT after detecting the odor of alcohol on his breath. Defendant was subsequently charged with OWI, and the results of the PBT were admitted over objection. State conceded that test results should not have been admitted, but argued that error was not preserved or error was harmless. Held that error was preserved because the State filed a motion in limine for a pretrial determination of admissibility before trial, and the defendant resisted the motion, and the error was not harmless because while the other evidence of intoxication was strong, it was not so strong as to overcome the presumption of prejudice and emphasis placed on the importance of the test result by the prosecutor to the jury. State v. Williams, 895 N.W.2d 856 (Iowa 5/25/2017) No. 14-0793. Speedy indictment rule commences upon arrest only when arrest is completed by making an initial appearance. Defendant was detained, interrogated, and physical evidence was seized from him in a sexual assault investigation, but was not taken into custody or charged by trial information for over a year. Defendant filed motion to dismiss for lack of speedy indictment, citing State v. Wing, 791 N.W.2d 243 (Iowa 2010) for the proposition that he reasonably believed he had been arrested over a year prior. Held that speedy indictment is no longer triggered by the circumstances surrounding custody or when a person is seized, but rather by the completion of the entire process of an arrest, which includes taking the arrested person to a magistrate for an initial appearance, overruling Wing. State v. Williams, N.W.2d, (Iowa 4/06/2018) No. 16-0894. Proof of mailing of the notice of bar is not an essential element of driving while barred. Defendant was arrested for driving while barred as a habitual offender and admitted that he knew he should not be driving. Held that pursuant to Iowa Code 321.560, the crime of driving while barred contains only two elements; i.e., 1) that the person was operating a motor 3
vehicle; 2) during the specified period when their privilege was barred. The State can prove this by introducing a copy of the certified driving record showing the period of time of the bar, and testimony that the Defendant was operating during that time period. The effective date of the bar is thirty days after the final decision of the department or the date on which the district court upholds the final decision if judicial review is sought, whichever occurs later. Opinion also suggests that an admission can be sufficient proof of notice to satisfy due process without proof of mailing. COURT OF APPEALS CASES State v. Hunter Nathanial Frescoln, No. 16-2043 (Iowa Court of Appeals, filed December 6, 2017). Implied consent statute not the exclusive means by which a chemical sample may be obtained. Defendant was arrested for OWI following a traffic stop and performance of SFSTs indicating impairment. Implied consent was never invoked, and a warrant for a sample of his blood was obtained showing a result over the legal limit. Held that implied consent statutes fall under the exceptions to the warrant requirement based upon consent, and do not require chemical testing. As long as a defendant is never presented with the opportunity to consent by invoking implied consent, nothing is refused and a general warrant is permitted under Iowa Code 321J.18 and State v. Oakley, 469 N.W.2d 681, 682 (Iowa 1991). The court also held that while a warrant to seize the sample, when construed in a commonsense manner, is valid to also test that sample, but the best practice is to state in the warrant that the purpose for requesting the sample is for chemical testing. Further, a person loses a privacy expectation in blood after its lawful removal from the body, and therefore testing does not violate constitutional protections. State v. Conner Daniel Carney, No. 16-1618 (Iowa Court of Appeals, filed July 19, 2017). Officer not required to allow a motorist to change their mind after a test refusal, but a second request is permissible. Defendant was involved in personal injury collision and implied consent was invoked at the hospital. The defendant initially refused a breath test, but when implied consent was explained again, he consented to a blood test. Held that 321J does not prevent an officer from requesting another sample after an initial refusal, distinguishing Welch v. Iowa Dept of Transp., 801 NW2d 590 (Iowa 2011), as applying only to license revocation cases. State v. Benjamin Royer, No. 16-1206 (Iowa Court of Appeals, filed October 11, 2017). Evidence of refusal of PBT properly used as consciousness of guilt. Defendant was involved in a collision after running a stop sign, and fled the scene on foot. He was found a short time later, and taken to the hospital, where the odor of alcohol was detected. He refused a PBT both at the hospital and after being transported to the police station after receiving treatment. He was convicted of OWI-3 rd, leaving the scene, DWB, and DWR. Held that it was proper to admit evidence that defendant refused a PBT and was properly used to indicate consciousness of guilt, and even if improper, the error was not prejudicial in light of the overwhelming evidence of defendant s intoxication, which included testimony by two officer, the treating paramedics, and video footage showing unsteadiness, slurred and slow speech, and agitation, along with the discovery of a vodka bottle and a beer can in the vehicle. 4
Expansion Cases State v. Zachary Lynn Flippo, No. 16-0721 (Iowa Court of Appeals, filed November 8, 2017). Passenger has standing to challenge expansion of traffic stop, change in demeanor after request to search is insufficient basis to expand scope. A traffic stop was initiated for a malfunctioning taillight, and the defendant, who was a passenger in the vehicle, was found to have a warrant. The driver was asked for consent to search, and her demeanor changed although she did not answer. A canine sniff was conducted, during which the presence of narcotics was detected. A full search yielded drugs, and the defendant admitted to possession. Defendant challenged the lawfulness of prolonging the traffic stop to allow for the canine sniff. Held that to lawfully broaden a traffic stop, an officer must have reasonable suspicion of other wrongdoing, and that suspicion must have developed within the time reasonably necessary to execute the initial stop. Where an officer completes the tasks necessary for the stop and then asks about illegal substances in the vehicle, thereafter basing suspicion on a change in demeanor of the occupants, such is insufficient to support continued detention of any of the occupants of the vehicle. State v. Owen Robert Gordon, No. 15-2038 (Iowa Court of Appeals, filed November 8, 2017). Sufficient evidence of operation while intoxicated based upon DRE evaluation, admissions and driving behavior. After a pursuit, officers detected an odor of marijuana coming from the vehicle and the defendant. A canine sniff alerted on the vehicle and a bag in the vehicle. Officers located rolling papers but no drugs. Defendant driver admitted to smoking marijuana while driving and throwing the marijuana out the window during the pursuit. Defendant submitted to a DRE evaluation and was found to be under the influence, but refused to give a urine sample. Held that admission to smoking marijuana during the pursuit, combined with impaired judgment in decision to elude police and drive erratically and with excessive speed constituted substantial evidence that defendant s reason or mental ability was affected. State v. Johnny Lee McFadden, Jr., No. 16-1184 (Iowa Court of Appeals, filed September 27, 2017). Traffic stop unlawfully prolonged to request consent to search, not cured by admission to possession of contraband. Defendant was stopped in a high crime neighborhood for a partially obscured license plate. A backpack was observed in the vehicle, which the officer felt was suspicious because there were no children in the car. Consent to search the backpack was denied, but the officer testified the defendant became nervous and his demeanor changed once he was asked. The officer advised the defendant that unless the backpack contained a gun or drugs, he had nothing to worry about. At that point, the defendant admitted it contained marijuana. The vehicle and backpack were searched, drugs were found, and defendant was convicted of PCS-intent. Held that although the stop of the vehicle was valid (even a dirty plate constitutes a traffic violation under 321.38), the traffic stop was unlawfully prolonged when the officer went beyond inquiries incident to the stop such as checking paperwork and warrant status, and did not proceed with the task of issuing a citation or warning, but instead requested consent to search without reasonable suspicion. The defendant s admission regarding 5
the contents of the backpack cannot be considered because it came after the stop was unlawfully prolonged. 6
START AGGRAVATED OWI INVESTIGATIONS / WARRANT FLOWCHART Crash with death or serious injury to someone other than suspect driver? NO NO OWI-3 rd or more / Crash with bodily injury only? YES No test, document all other observations and proceed with charging decision* REFUSAL Invoke implied consent YES Is driver conscious and able to consent/refuse? NO CONSENT DO NOT invoke implied consent YES Get Search Warrant under 321J.10 Invoke implied consent CONSENT Collect Sample Get Search Warrant under 808 REFUSAL Get Search Warrant under 321J.10 *If there is no crash or OWI-3 rd, process as regular OWI pursuant to 321J.6 implied consent/refusal (no test case)