Opinion
No. 04-0167.
March 16, 2005.
Appeal from the Iowa District Court for Polk County, James D. Birkenholz, Judge.
Defendant-appellant, Kevin Cain, appeals his conviction for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2003). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant-appellant, Kevin Cain, appeals his conviction for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2003). Defendant contends the district court erred in denying his motion to suppress a drug pipe, which was seized in a warrantless search of his person, and statements that he made about drug usage prior to receiving a Miranda warning. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant was stopped for speeding in the early morning hours. The stopping officer, Officer Skogen, observed defendant acting "extremely nervous," looking and moving around a lot in his car, so she immediately called for backup. Officer Skogen spoke briefly to defendant, obtained his license, and determined that he did not have vehicle registration or proof of insurance. When she returned to her vehicle with defendant's license to conduct a warrant check and write a speeding ticket, the backup officer, Officer Agan, arrived.
Officer Agan approached defendant while defendant was in his car and observed that defendant was "very nervous, very fidgety, was having trouble understanding basic instructions." Officer Agan had defendant get out of the car. Upon exiting the vehicle Officer Agan testified that defendant "kept walking towards me and reaching towards something behind his — toward the rear of his body, in his pocket." Officer Agan repeatedly ordered defendant to stop and defendant did not immediately comply. This caused Officer Agan to remove his pepper spray before defendant stopped. Defendant eventually removed his wallet from his back pocket, and then did comply with Officer Agan's orders. Officer Agan ordered defendant to the back of defendant's car and asked if he could either "pat him down" or "search" him. Defendant contends that consent was sought for a patdown. The State contends consent was sought for a search. Defendant apparently consented to Officer Agan's request, whichever it was.
When Officer Skogen, who was still in her car conducting a check on defendant's license, saw Officer Agan making motions to turn defendant around she assumed that Officer Agan was going to conduct a patdown and went to assist "in case something would happen or for officer safety." Officer Agan proceeded to pat down defendant. In the course of the patdown, Officer Agan testified that he "felt an object which to me indicated it was a pipe of some type."
Officer Agan requested that defendant empty his pockets. Defendant removed items from his pockets, but he did not remove the item the officer believed to be a pipe. Officer Agan repeatedly asked defendant to remove the object but defendant did not comply. Officer Agan went back to the exterior of the pocket and felt for the object for, what Officer Skogen testified was, "[p]robably another five seconds at the most." Again, defendant was asked to remove the object, and again defendant did not remove the object. The officers then decided to detain defendant and place him in handcuffs. After handcuffing defendant, which caused some struggle, Officer Agan reached into defendant's pocket and retrieved the pipe, which was a glass pipe apparently used for smoking methamphetamine. Defendant did not specifically offer consent to the officers to reach into his pocket prior to the Officer Agan doing so.
Once the pipe was retrieved from defendant's pocket, Officer Agan questioned defendant about smoking methamphetamine. The officer first asked if defendant had smoked methamphetamine about an hour ago; defendant answered no. The officer then asked if defendant had smoked methamphetamine in the last two or three hours; defendant answered yes. Defendant was then arrested for possession of drug paraphernalia.
After defendant was brought to the police station, the officers conducted field sobriety tests. The tests indicated to the officers that defendant may have been under the influence of a controlled substance. Defendant was then put through booking procedures. In the course of the booking procedures, defendant was asked whether he had used any drugs that day and he responded that he had used a little methamphetamine. Defendant was apparently never advised of his Miranda rights, as the officer who conducted booking testified that defendant was not advised of his Miranda rights prior to booking and that after the booking process was completed, defendant was released on a promise to appear. Defendant was later charged with operating while intoxicated after the results of a urine test revealed the presence of methamphetamine, amphetamine, and cannabinoids in defendant's system. He was convicted of that crime.
Prior to trial defendant filed a motion to suppress the seized pipe and the statements made by defendant regarding his drug usage prior to being given a Miranda warning. The district court denied the motion. Defendant, after trial, was convicted of operating while intoxicated, first offense, in violation of Iowa Code section 321J.2.
II. STANDARD OF REVIEW.
In reviewing an alleged violation of a constitutional right, we review de novo the totality of the circumstances as shown by the entire record. State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000). We are not bound by the district court's determinations, but we may give deference to its credibility findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). In reviewing the district court's ruling, we consider both the evidence presented at the suppression hearing and that introduced at trial. Id. The adverse ruling on defendant's motion to suppress preserved error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
III. ANALYSIS.
A. Search and Seizure.
Defendant contends the drug pipe seized from his pocket should have been suppressed because the evidence only demonstrates that he consented to a patdown, and that the officer then went beyond the scope of defendant's consent by reaching into defendant's pocket and removing the pipe. The State contends that defendant gave consent to be searched, not simply to a patdown.
The search at issue was conducted without a warrant. Warrantless searches and seizures are presumptively unreasonable, and the State bears the burden of proving it was within one of the exceptions to the warrant requirement of the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004).
One well-established exception to the warrant requirement is a search conducted by consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). A warrantless search conducted by free and voluntary consent does not violate the Fourth Amendment. See id.; see also State v. King, 191 N.W.2d 650, 655 (Iowa 1971). "The scope of consent is determined by what a `typical reasonable person [would] have understood by the exchange between the officer and the suspect.'" State v. McConnelee, 690 N.W.2d 27, 30 (2004) (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 302 (1991)).
There is substantial evidence in the record tending to indicate that defendant only consented to a patdown search. First, Officer Agan, who obtained the consent from defendant and conducted the patdown, testified in his direct examination, "After the point where I had him back to the car, I told Mr. Cain, based on his actions, I asked for his permission to pat him down. He consented." (Emphasis added.) Second, virtually every time Officer Agan referred to the search of defendant in his testimony, he referred to it as a "patdown." Third, Officer Agan testified that, while he had written consent forms with him, he did not have defendant sign a written consent prior to the search. Fourth, the manner in which the search was conducted indicates that consent was only given for a patdown search. Officer Agan felt the object during his patdown but did not immediately reach into defendant's pocket to remove the item. This tends to indicate that Officer Agan only sought or was only given consent to patdown defendant. The search sequence is supported by testimony of the officers and the video recording of the incident. Fifth, Officer Skogen, who was standing next to defendant and Officer Agan after she helped put defendant in handcuffs, testified that defendant did not specifically grant consent to the officers to allow them to reach into his pocket. Finally, while Officer Skogen was not within hearing distance when defendant consented to the search, she repeatedly referred to the search as a patdown in her testimony.
The only evidence in the record tending to indicate defendant consented to a comprehensive, physical search is Officer Agan's answer to a question on cross-examination.
Q. And you requested that the defendant consent to a pat-down; is that correct?
A. I don't think that I referred to it as a pat-down, but I asked if I could search him, same thing.
This statement by Officer Agan is not enough to meet the State's burden in showing that defendant consented to a comprehensive, physical search.
Based on our de novo review of the evidence, we conclude that defendant consented to a patdown, but defendant did not grant consent to officers to reach into his pockets as a part the search.
We also conclude that, even if defendant did not grant consent to a patdown, the patdown was appropriate under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). The Fourth Amendment requires that an officer have "reasonable cause" to stop an individual for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). An officer must have specific and articulable cause to support a reasonable belief that criminal activity may have occurred. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). The stop of defendant's vehicle was appropriate in this case because Officer Skogen determined, by radar, that defendant was speeding. After stopping a vehicle, an officer may make a protective, warrantless search of a person when the officer "reasonably believes under all the circumstances that the suspicious person presents a danger to the officer or to others." State v. Riley, 501 N.W.2d 487, 489 (Iowa 1993) (citing Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). Under the circumstances, Officer Agan was justified in patting down defendant for weapons. The officer observed that defendant was nervous and fidgety and had trouble understanding basic instructions. Additionally, upon exiting his vehicle, defendant kept walking towards Officer Agan while reaching behind his body, despite repeated orders to stop. Therefore, Officer Agan reasonably believed defendant presented a danger to him or others and a patdown for weapons was justified, even without defendant's consent.
We must next determine whether the police exceeded the scope of the search which was authorized or justified. Defendant argues that the physical search of the inside of his pocket violated the scope of his consent. The State argues that, even if only a patdown of defendant was authorized or justified, the seizure of the glass pipe was still appropriate under the "plain feel" corollary to the plain-view doctrine recognized in Minnesota v. Dickerson, 508 U.S. 366, 377-78, 113 S. Ct. 2130, 2137-38, 124 L. Ed. 2d 334, 347 (1993). "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Dickerson, 508 U.S. at 375-76, 113 S. Ct. at 2137, 124 L. Ed. 2d at 346 (emphasis added). In Dickerson the Supreme Court held that where an item was only apparent as contraband after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket" that the police overstepped the bounds of their search for weapons and it became an unconstitutional search for evidence. Id. at 378, 113 S. Ct. at 2138, 124 L. Ed. 2d at 347-48. Therefore, probable cause was not immediately apparent to the officer, and the continued search to gain that probable cause was inappropriate. Id.
We conclude that, in the present case, the police seizure of the pipe falls within the plain feel doctrine. The incriminating nature of the object in defendant's pocket was immediately apparent to Officer Agan. He testified that in his initial patdown, "I felt an object which to me indicated it was a pipe of some type." Officer Agan further asserted that based on his training and experience as a law enforcement officer and the defendant's failure to comply, that it was a pipe used to smoke illicit drugs. On cross examination, Officer Agan maintained that he was immediately certain the object in defendant's pocket was contraband. On redirect Officer Agan testified:
Q. Officer, the initial pat-down of Mr. Cain, what did you think the object was in Mr. Cain's pocket? A. It was a pipe.
Q. Did you suspect it was paraphernalia? A. Yes. Drug paraphernalia.
We find this testimony to be credible. We conclude that it was immediately apparent to Officer Agan, upon doing the initial patdown, that the object in defendant's pocket was drug paraphernalia. Therefore, the warrantless seizure of the pipe was justified by the same practical considerations that inhere in the plain-view context. The district court was correct in denying defendant's motion to suppress the pipe.
B. Miranda Protection.
The Fifth Amendment guarantee against self-incrimination provides certain protections from coercive pressures that may be imposed on a suspect during custodial interrogations. State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994) (citing State v. Miranda, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Miranda's central principle is: "if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt." Id. (citing Berkemer v. McCarty, 468 U.S. 420, 429, 104 S. Ct. 3138, 3144, 82 L. Ed. 2d 317, 328 (1984)). Miranda warnings are required where there is both custody and interrogation. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).
The custody determination is made based on the objective circumstances of the interrogation. Id. "The ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. at 557-58. We look to "whether a reasonable person in the defendant's position would understand himself to be in custody." State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994). We have a four-factor test as guidance for making that determination.
These factors include: (1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant was confronted with evidence of [his or] her guilt; and (4) whether the defendant is free to leave the place of questioning.
Countryman, 572 N.W.2d at 557 (citing Deases, 518 N.W.2d at 789).
Defendant argues that Officer Agan's questioning of him about his drug usage at the scene of the traffic stop after seizure of the drug pipe was in violation of his Fifth Amendment rights. In applying the four-factor test, we agree with defendant. It objectively appears that defendant was in custody when he was questioned about his methamphetamine use by Officer Agan. Defendant was asked to exit his vehicle and be patted down. He was repeatedly questioned about an item in his pocket until he became nonresponsive to the officer's questions. The officers then handcuffed defendant, bending him over the trunk of his car in the process. Then Officer Agan reached into defendant's pocket and retrieved the pipe from defendant's pocket. Confronting defendant with the pipe, Officer Agan asked defendant if he had used methamphetamine in the last hour, to which defendant responded no. Officer Agan then asked defendant if he had used in the last two-to-three hours, to which defendant responded affirmatively. This was clearly an instance of custodial interrogation. Defendant was removed from his vehicle, patted down, handcuffed, searched, and then persistently questioned about his drug usage. Furthermore, the officers explicitly testified that defendant was not free to leave while Officer Agan questioned him. We recognize that a person temporarily detained pursuant to a traffic stop is not considered to be "in custody" for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 335 (1984). However, the present case far exceeded a temporary traffic stop detention.
Defendant was not advised of his Miranda rights prior to Officer Agan questioning him about his drug usage. Therefore, defendant's motion to suppress the statements made by defendant to Officer Agan after seizure of the pipe should have been granted by the district court. On this issue we reverse.
Additionally, defendant argues his answers to booking questions regarding his use of drugs were obtained in violation of his Fifth Amendment rights. The officer who conducted the booking testified at trial that a Miranda warning was not given to defendant prior to proceeding with the booking questions. The United States Supreme Court has held that there is a "`routine booking question' exception which exempts from Miranda's coverage questions to secure the `biographical data necessary to complete booking or pretrial services.'" Pennsylvania v. Muniz, 496 U.S. 582, 601-602, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528, 552 (1990). However, the booking exception
does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.
Id. In determining whether a question is "designed to elicit an incriminatory admission" we focus on "the perspective of the suspect." Id. Furthermore, the Iowa Supreme Court, citing the Eighth Circuit, has stated:
A request for routine information necessary for basic identification purposes is not interrogation under Miranda, even if the information turns out to be incriminating. Only if the government agent should reasonably be aware that the information sought, while merely for basic identification purposes in the usual case, is directly relevant to the substantive offense charged, will the question be subject to scrutiny.
State v. Sallis, 574 N.W.2d 15, 18 (Iowa 1998) (citing United States v. Brown, 101 F.3d 1272 (8th Cir. 1996)).
In applying the case law to the present case, we conclude that the booking question regarding defendant's drug usage does not fit within the "routine booking question" exception. Defendant was arrested for possession of drug paraphernalia, therefore questions regarding defendant's drug usage were relevant to the substantive offense and the booking officer reasonably should have known this. Further, we conclude that the question regarding defendant's drug usage, when viewed from the perspective of defendant, was designed to illicit an incriminating response. Without obtaining a waiver of defendant's Miranda rights, this question was improper and defendant's response to the question should have been suppressed by the district court. Thus, we reverse on this issue.
We reverse the defendant's conviction and remand for a new trial.