State of Iowa v. Douglas Henry Ollinger

• Court: Court of Appeals of Iowa
• Decided: July 9, 2015
• Docket: 14-1619
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1619 Filed July 9, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

DOUGLAS HENRY OLLINGER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pocahontas County, Kurt L. Wilke,

Judge.

A criminal defendant appeals his conviction and sentence following the

district court’s denial of a motion to suppress. REVERSED AND REMANDED.

Derek Johnson of Johnson & Bonzer, P.C., Fort Dodge, for appellant.

Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Ann Beneke, County Attorney, and Ashley Bennett, Assistant County

Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

TABOR, J.

Douglas Ollinger challenges the investigative stop that resulted in his

arrest for operating while intoxicated (OWI), second offense. Ollinger claims his

constitutional protection against unreasonable searches and seizures was

violated when a sheriff’s deputy stopped his vehicle without reasonable suspicion

or probable cause. Because the State’s evidence did not justify the seizure, we

reverse the ruling denying Ollinger’s motion to suppress.

I. Background Facts and Proceedings

About 10:15 p.m. on March 14, 2014, concerned citizen Kim Himrod called

emergency dispatch to report a “suspicious vehicle” parked near her neighbor’s

farmstead in rural Pocahontas County. The neighbor’s house was empty

because the husband had died and the wife moved to a nursing facility. Himrod,

whose property was located about a quarter of a mile away, told dispatch she

watched the vehicle for half an hour before “she shined a flashlight on it, which

caused it to move or leave.”

Pocahontas Deputy Sherriff Steven Henderson responded to the call.

While driving toward the scene, the deputy received information the vehicle was

travelling on a county road toward Iowa Highway 4, but dispatch did not relay a

make or model of the car or which direction the car would be traveling on

Highway 4. The dispatch described the vehicle as a “small, dark-colored

passenger car.” Deputy Henderson saw two vehicles matching this general

description on Highway 4. He requested another officer obtain the license plate

number of the first vehicle. Deputy Henderson then followed the second vehicle 3

and pulled it over to investigate the “suspicious activity” reported to dispatch.

Ollinger was driving the car stopped by Deputy Henderson. The deputy noticed

Ollinger smelled like alcoholic beverages. Ollinger also had slurred speech and

bloodshot and watery eyes. The deputy arrested Ollinger for OWI.

The State charged Ollinger by trial information on March 26, 2014.

Ollinger filed a motion to suppress on April 23. After holding a suppression

hearing1 on May 27, 2014, the district court denied the motion. In its ruling, the

court discussed both reasonable suspicion and probable cause but based its

order solely on reasonable suspicion for the stop. The court cited Ollinger’s

“furtive” action of leaving the property after Himrod shined her flashlight at his

car. Ollinger was tried on the minutes of testimony and found guilty. On

September 18, 2014, the court sentenced Ollinger to 365 days of incarceration

with all but seven days suspended. The court placed him on probation and

ordered a fine of $1875.

II. Standard of Review

Ollinger asserts the investigative stop violated both his state and federal

constitutional rights to be free from unreasonable search and seizure. U.S.

Const. amend. IV; Iowa Const. art. I, § 8. The constitutional dimensions of these

claims call for a de novo review. State v. Tyler, 830 N.W.2d 288, 291 (Iowa

2013). A de novo review requires “an independent evaluation of the totality of

the circumstances as shown by the entire record.” State v. Pals, 805 N.W.2d

767, 771 (Iowa 2011) (citation and internal quotation marks omitted).

1 Deputy Henderson was the only witness at the suppression hearing. 4

III. Analysis

A traffic stop is permissible under the state and federal constitutions when

supported by probable cause or reasonable suspicion of a crime. State v.

McIver, 858 N.W.2d 699, 702 (Iowa 2015). Law enforcement may perform an

investigative stop “[i]n the absence of probable cause if the police have

reasonable suspicion to believe criminal activity is taking place.” Pals, 805

N.W.2d at 774. When the motorist challenges the stop on the basis that

reasonable suspicion was not present, the State must show the officer had

specific and articulable facts, which when taken together with reasonable

inferences, would lead one to believe criminal activity had occurred. State v.

Tague, 676 N.W.2d 197, 204 (Iowa 2004).

“Probable cause exists if the totality of the circumstances as viewed by a

reasonable and prudent person would lead that person to believe that a crime

has been or is being committed and that the arrestee committed or is committing

it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990). The State must prove

by a preponderance of the evidence that the officer had probable cause to stop

the vehicle. State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). Any “traffic

violation, no matter how minor, gives a police officer probable cause to stop the

motorist.” State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006) (citation omitted).

A. Reasonable Suspicion

Deputy Henderson had limited information available to him. He learned

from dispatch that a named citizen, Himrod, had reported a “suspicious vehicle”

near a vacant farmstead a quarter of a mile away from her property. Himrod 5

could not see if the vehicle was on her neighbor’s property or parked on the road.

Himrod watched the vehicle for approximately a half hour and told dispatch that

when she shined a flashlight at the vehicle, it drove away. The deputy admitted

he did not know if the driver of the vehicle could see the beam from Himrod’s

flashlight. Himrod gave a “general description” of the vehicle but was not able to

provide the color, make, model, or license plate number.

While driving to the scene, Deputy Henderson saw two cars matching the

general description given by Himrod. Deputy Henderson bypassed the first car

and chose to stop the second car, which was driven by Ollinger. The deputy

testified he was not certain he was stopping the same car that Himrod reported.

Even if Deputy Henderson correctly played the fifty-fifty odds and stopped the car

that was the subject of Himrod’s concerns, her concerns did not amount to

reasonable suspicion that a crime had been committed. The deputy testified that

to his knowledge Himrod had not reported any activity that was illegal.

In deciding this suppression issue, we first turn to case law on citizen tips.

In State v. Kooima, 833 N.W.2d 202, 204 (Iowa 2013), an anonymous tipster

reported seeing several individuals he believed to be intoxicated preparing to

drive away. The tipster in Kooima was able to provide the license plate number,

make, model, color, and some description of the driver. Kooima, 833 N.W2d at

204. But our supreme court held that a call from “an anonymous tipster, without

relaying a personal observation of erratic driving, other facts to establish the

driver is intoxicated, or details not available to the general public as to the 6

defendant’s future actions does not have the requisite indicia of reliability to

justify an investigatory stop.” Id. at 210-11.

In this case, a named citizen supplied the tip. Information imparted by a

citizen informant is generally considered reliable. See State v. Niehaus, 452

N.W.2d 184, 189 (Iowa 1990). But even if we assume Himrod was a reliable

source, the quality of her information was wanting in two regards. First, she

offered only a vague accusation of “suspicious” behavior by the driver of the

vehicle parked at her neighbor’s place and second, she gave dispatch only a

general description of that vehicle.

On the first point, the deputy testified that based on Himrod’s report, he

was investigating a possible trespass or burglary, adding “I mean, a number of

different crimes associated with the—that could occur at an abandoned farm

place like that.” The deputy testified vacant farm houses in rural counties were

targets for burglars: “[I]t’s just a matter of time when somebody comes on the

property looking for something.” But the deputy agreed he had no information

whether anyone was authorized to be on the property of Himrod’s neighbor

before stopping Ollinger’s car.

We recognize seemingly innocent activities may combine with other

factors to give experienced law enforcement officers cause to suspect

wrongdoing. State v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995). But a

generalized suspicion that any vehicle in the vicinity of a closed business might

be engaged in unlawful activity is not enough to allow an invasion of the driver’s

privacy. Id. The same concept applies here. A blanket concern about burglaries 7

in rural Iowa did not provide the deputy reasonable suspicion for a stop in this

particular case. The deputy was unaware of any specific burglaries at the

location in question.

Even if we assume Himrod’s action in shining the flashlight prompted the

car to leave, “[w]e do not know of any case law or other authority which suggests

that a private citizen’s avoidance of another private citizen . . . is indicative of

criminal behavior.” See id. This case is unlike the stop upheld in State v.

Richardson, 501 N.W.2d 495, 497 (Iowa 1993), when the defendant’s vehicle

was parked late at night in a commercial area, which had a history of illegal

activity and no legitimate attractions, and left to avoid an approaching police

officer. Here, the deputy stopped a car which may have been seen by a citizen

parked near a vacant farm house—without any other factors contributing to

reasonable suspicion. The indefinite information reported to dispatch and the

deputy’s general knowledge concerning rural burglaries did not give the deputy a

legitimate reason to conduct an investigative stop. See Haviland, 532 N.W.2d at

770.

B. Probable Cause

As a back-up argument, the State contends that if we reject the stop

based on the concerned citizen’s report, we may uphold it based on probable

cause of traffic offense, specifically a violation of Iowa Code section 321.297(1)

(2013), which requires that vehicles be driven on the right half of the roadway.

Ollinger argues the State may not rely on this alternative ground because the

district court’s ruling rested solely on Deputy Henderson’s reasonable suspicion 8

that Ollinger was involved in a trespass or burglary. See DeVoss v. State, 648

N.W.2d 56, 63 (Iowa 2002).

We may uphold the ruling of the district court “on a ground other than the

one upon which the district court relied provided the ground was urged in that

court.” Id. at 61. The traffic-offense rationale was anticipated by Ollinger in his

brief in support of the motion to suppress; the defense argued “one isolated ‘drift’

to the center and ‘possibly’ touching or crossing the centerline” does not provide

grounds for the stop. The district court noted Ollinger’s argument that a “single

episode of veering to the centerline, but not crossing, adds nothing to [the

State’s] case (citing State v. Tague, 676 N.W.2d 197 (Iowa 2004)).” While not

the express basis for the decision to uphold the stop, the probable-cause ground

was urged in the district court and is properly before us on appeal.

To establish probable cause the State asserts Deputy Henderson saw

Ollinger violate section 321.297(1).2 But the deputy’s testimony at the

suppression hearing does not support a violation of that statute. During his direct

examination, Deputy Henderson testified: “As I was attempting to catch up to the

vehicle, I did notice it cross the centerline.” Deputy Henderson’s resolve

softened significantly as he was questioned further. During cross-examination,

the deputy admitted he was as far as two-hundred yards away and on the phone

with another officer when “it appeared” to him that Ollinger “drifted over to the

centerline and crossed the centerline.” The deputy also said: “I believe he did

2 “A vehicle shall be driven upon the right half of the roadway upon all roadways of sufficient width, except [for circumstances not present in this case].” Iowa Code § 321.297(1). 9

touch the centerline. He was on the centerline.” Finally when asked by defense

counsel “[s]o you think [Ollinger’s] vehicle touched the centerline, not sure if he

crossed it?” Deputy Henderson responded, “Correct.”

In Tague, our supreme court determined a police officer lacked probable

cause to stop a motorist for a violation of section 321.297 when the motorist

crossed an edge-line marking, not the center line of the roadway. 676 N.W.2d at

203. The Tague court also decided the motorist’s “single incident of crossing the

edge line for a brief moment” did not give the officer probable cause to stop for a

violation of section 321.306, which requires a vehicle be driven “as nearly as

practical entirely within a single lane.” Id. at 204.

While not controlling, we find the discussion concerning incidental and

momentary crossing of the edge line in Tague to be instructive. Deputy

Henderson was not sure if Ollinger’s car crossed or just touched the centerline.

The language of section 321.297(1) does not criminalize touching the centerline

but rather mandates “driving” on the right half of the roadway. We are persuaded

by decisions from other jurisdictions analyzing similar traffic statutes. See, e.g.,

People v. Del Re, No. 2-11-0984, 2012 WL 6967969, at *5 (Ill. App. Ct. June 12,

2012) (opining that “driving on the centerline pavement marking and driving ‘upon

the right half of the roadway’ (625 ILCS 5/11–701(a) (West 2010)) are not

necessarily mutually exclusive acts”); State v. McGregor, No. 107, 855, 2013 WL

1010590, at *2-3 (Kan. Ct. App. Mar. 8, 2013) (reversing conviction for failing to

drive on right side of roadway when defendant “touched the center line once with

her driver’s side tires and some bodywork extended over the line itself” but “her 10

vehicle traveled on the right half of the roadway and did not cross the center

line”); State v. Loyd, 326 S.W.3d 908, 915 (Mo. Ct. App. 2010) (concluding

driving car with tires “touching the center line” alone was an insufficient basis to

conduct a traffic stop); Commonwealth v. Enick, 70 A.3d 843, 848 (Pa. Super. Ct.

2013) (upholding stop under similar traffic violation but noting its analysis did not

“foreclose the possibility that a momentary and minor violation of [75 Pa. C.S.A.]

§ 3301 might, in a different case, be insufficient to establish probable cause for a

vehicle stop”).

Deputy Henderson did not have a good view of Ollinger’s path of travel

and was unconvincing in his testimony concerning the traffic violation, which is

likely why the district court did not rely on probable cause to uphold the stop. In

our de novo review of the record, we conclude probable cause did not exist to

find a violation of section 321.297(1). See State v. Stanley, No. 12-1855, 2013

WL 3458079, at *2 (Iowa Ct. App. 2013) (holding no probable cause to believe

defendant violated section 321.297 when deputy did not see, but assumed, car

crossed center line).

Because the record shows neither reasonable suspicion nor probable

cause that Ollinger was committing a crime, the stop of his vehicle violated his

rights under the Fourth Amendment of the United States Constitution and article

I, section 8 of the Iowa Constitution. We reverse the denial of Ollinger’s motion

to suppress and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.