Opinion
No. 2-654 / 01-0956
Filed February 12, 2003
Appeal from the Iowa District Court for Polk County, J. W. Jordan, Judge.
Bedard appeals his conviction for assault on a peace officer, contending there was insufficient evidence to support the conviction. REVERSED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Thomas Desio, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., Vaitheswaran, J, and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
Donald Bedard appeals his conviction, judgment and sentence for assault on a peace officer. He contends: 1) there was insufficient evidence to support the conviction, 2) the district court failed to afford him his right of allocation, and 3) the district court failed to set forth its reasons for the sentence. Finding the first issue dispositive, we reverse.
I. Background Facts and Proceedings
A fact finder could have found the following facts. A complainant informed the Urbandale Police Department that an intoxicated person was "starting fights" at a bar. Officer Don Vestal was dispatched to the bar but, on arriving in the vicinity, learned the person had left. Vestal obtained a description of the person from the dispatcher. He observed a man fitting the description walking from the bar's parking lot into a nearby grocery store.
Officer Vestal went into the store and made eye contact with the man, later identified as Bedard. Bedard looked away. Vestal approached him and asked where he had come from and where he lived. Bedard told him he was coming from home, pointed to the other end of the store, and began to walk away with his hands in his pockets. Vestal followed Bedard and told him to remove his hands from his pockets; Bedard ignored him and continued walking away.
Officer Vestal pursued Bedard and grabbed his arm. Bedard pulled away; Vestal continued his attempts to grab him. At this point, Bedard turned and swung his right arm toward the officer. Vestal stepped back, pushed Bedard, and sprayed him with pepper spray.
Bedard became agitated and took off. Officer Vestal pursued him and, when he got close, attempted to use a "leg sweep" to get Bedard to the floor. This maneuver proved unsuccessful so Vestal pushed Bedard into a door. Bedard then dove toward the officer's legs and grabbed his utility belt. Vestal responded by striking him in the head, causing his own wrist to fracture, and spraying him again with pepper spray. He then stepped to the side and kicked Bedard in the ribs. Bedard curled into a fetal position.
Officer Vestal next attempted to handcuff Bedard. Bedard resisted. Vestal sprayed him a third time and gave him a "knee strike" into the side of his torso. He then secured one of Bedard's arms.
The State charged Bedard with assault on a peace officer. See Iowa Code §§ 708.1(1) and 708.3A(4) (1999). The district court found him guilty and sentenced him. This appeal followed.
II. Sufficiency of the Evidence
Bedard's primary contention is that there was insufficient evidence to support the district court's finding of guilt. That finding is binding on us if supported by substantial evidence. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).
A person is guilty of assault on a peace officer if the person, "without justification" commits an act on the officer "which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another" and this act is "coupled with the apparent ability to execute the act." Iowa Code §§ 708.1(1), 708.3A(4).
The State claims Bedard committed assault when he tried to "strike officer Vestal with his fist or elbow." Bedard responds that his reaction was legally justified because it was in response to an unlawful seizure of his person. See Iowa Code § 704.3 (stating a "person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force"). The key question therefore, is whether Officer Vestal acted unlawfully when he grabbed Bedard's arm after Bedard walked away. See State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998). The parties agree that, to answer this question, we must look to Fourth Amendment jurisprudence. See State v. Hauan, 361 N.W.2d 336, 340 (Iowa Ct.App. 1984) (applying Fourth Amendment principles to sufficiency of the evidence challenge).
The State does not appear to rely on Bedard's subsequent actions to establish the assault.
Generally Fourth Amendment issues are raised via a motion to suppress evidence. See, e.g., State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001); State v. Bergmann, 633 N.W.2d 328, 331 (Iowa 2001). No such motion was filed here. This would generally preclude review. Bergmann, 633 N.W.2d at 332. However, the State concedes that the Fourth Amendment issue is being raised in the context of a challenge to the sufficiency of the evidence and further concedes error was preserved in this context.
The Fourth Amendment protects people from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (1968). "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Id., 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d at 903. In determining whether the seizure is reasonable, the objective test is whether "the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate". Id., 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d. at 906. An action is appropriate if, before seizing a person, the officer can reasonably conclude "that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. . . ." Id., 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.
Where an officer does not personally observe suspicious behavior but relies on an anonymous tip, the tip must exhibit "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Florida v. J.L., 529 U.S. 266, 269, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327, 110 S.Ct. 2412, 2414, 110 L.Ed.2d 301, 306 (1990)). The indicia of reliability may be different if the alleged offense does not involve a concealed crime but a public crime in progress. State v. Walshire, 634 N.W.2d 625, 628 (Iowa 2001). In such a situation, "[i]ndependent corroboration of the inculpatory details of a defendant's tip is not mandatory." Id. (quoting State v. Markus, 478 N.W.2d 405, 408 (Iowa Ct.App. 1991)); cf. J.L., 529 U.S. at 272, 120 S.Ct. at 1379, 146 L.Ed.2d at 261 (stating "reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person").
Officer Vestal did not see Bedard commit a crime. He followed Bedard into the grocery store solely on the basis of several tips conveyed to him by the dispatcher. The first disclosed that "an intoxicated person was starting fights in the bar." From the second tip, Vestal learned that the person "causing the disturbance had left the bar." The third tip described the person as "a gentleman that was approximately in his fifties, gray hair, wearing a dark-colored jacket and a baseball — dark-colored baseball-type hat."
The State contends the content of these tips, together with the officer's corroboration of the location and description of the person, "constitutes reasonable suspicion to stop and detain this defendant for questioning." One key factor is missing, however: the suspicion of criminal activity. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911 (1968). At best, the tips revealed Bedard was intoxicated at some point in the past, and was starting "fights," a word that could connote nothing more than verbal sparring.
Fight. A hostile encounter, affray or altercation; a physical or verbal struggle for victory; pugilistic combat. Black's Law Dictionary 627 (6th ed. 1990).
Officer Vestal did not go to the bar to get a more detailed account of what happened. He did not observe signs of intoxication when he stopped Bedard nor did he elicit any admissions concerning the substance of the "fights." Cf. Young v. City of Des Moines, 262 N.W.2d 612, 614-15 (Iowa 1978) (noting intoxication not an indictable offense); In re S.A.W., 499 N.W.2d 739, 741 (Iowa Ct.App. 1993) (holding tip of "possible fight in progress" furnished reasonable suspicion for vehicle stop in the vicinity of the incident when combined with follow-up tip of gunshots). Given the absence of any evidence of a crime in progress and the absence of any corroboration of past criminal activity, we believe the tips did not allow the officer to reasonably conclude criminal activity was afoot.
Bedard's conduct immediately prior to the seizure of his arm also did not raise any suspicion of criminal activity. Although Bedard appeared "defensive" and "agitated" when first questioned by Officer Vestal, he did not engage in any disruptive activity and he did not flee. Cf. State v. Wullner, 401 N.W.2d 214, 217 (Iowa 1986) (noting defendant walking in a ditch near scene of an accident began running when approached by law enforcement officer). He simply answered one question, pointed in the direction of his home, and, according to Vestal, "started to walk away. . . ." These circumstances did not afford the officer any additional reason to believe criminal activity was afoot. Hauan, 361 N.W.2d at 340 (ordinarily person addressed has equal right to ignore interrogator and walk away); cf. State v. Scott, 405 N.W.2d 829, 831 (Iowa 1987) (police satisfied Fourth Amendment standards where they acted on an identified tip from a robbery victim describing car and man seen running away from scene).
The parties agree that Fourth Amendment concerns were not implicated when Officer Vestal initially approached Bedard and engaged in a consensual conversation with him. See United States v. Mendenhall, 446 U.S. 908, 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509-510 (1980) (inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person); People v. Morales, 935 P.2d 936, 939 (Colorado 1997) (consensual interview does not need to be justified by probable cause or reasonable suspicion of criminal activity).
Finally, we are not persuaded by the State's argument that Officer Vestal had a right to seize Bedard to check for weapons. Even where a tip discloses the presence of a firearm, the United States Supreme Court has expressly rejected the notion that police have a blanket right to conduct protective searches for weapons. See J.L., 529 U.S. at 273, 120 S.Ct. at 1380, 146 L.Ed.2d at 274. Police must have "legitimately stopped" a person before engaging in such a search. Id.; Hauan, 361 N.W.2d at 340.
The tips received by Officer Vestal did not suggest Bedard was armed and dangerous. Although he had his hands in his pockets, this fact alone was insufficient to justify a protective search in the absence of other indicia of criminal activity. Cf. State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001) (holding combination of factors including presence of defendant in known drug area alongside "nefarious drug dealer," immediate retreat on noticing officer, and officer's recognition of defendant from past weapon and drug arrest furnished reasonable suspicion for a pat down search). Contrast United States v. Barnes, 496 A.2d 1040, 1042-43 (D.C. 1985) (officer's request to defendant that he remove hands from pockets did not implicate Fourth Amendment concerns absent intimidating circumstances).
In sum, Officer Vestal's act of seizing Bedard by grabbing his arm violated the Fourth Amendment guarantee against unreasonable searches and seizures. Therefore, that act was "unlawful" within the meaning of Iowa Code section 704.3 and Bedard's responsive movement was justified. See Iowa Code § 708.1(1); Ceaser, 585 N.W.2d at 194 (burden to disprove self-defense rests with State).
III. Disposition
There was insufficient evidence to support Bedard's conviction for assault on a peace officer. We need not address the sentencing issues Bedard raises.