State of Iowa v. Kari Lee Fogg

• Court: Supreme Court of Iowa
• Decided: December 20, 2019
• Docket: 18-0483
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 18–0483

Filed December 20, 2019

STATE OF IOWA,

Appellee,

vs.

KARI LEE FOGG,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Boone County, Paul G.

Crawford (motion to suppress) and Stephen A. Owen (trial), District

Associate Judges.

A defendant appeals her conviction for operating while intoxicated

first offense, contending that her motion to suppress should have been

granted. DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.

Mark C. Smith, State Appellate Defender (until withdrawal), and

Melinda J. Nye, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Genevieve Reinkoester,

Assistant Attorney General, Dan Kolacia, County Attorney, and Matthew

Speers, Assistant County Attorney, for appellee. 2

MANSFIELD, Justice.

A police officer saw a vehicle driving suspiciously for several minutes

in a residential neighborhood at night at a snail’s pace of ten miles per

hour. After the vehicle entered a one-lane alley that ran between two

streets and then did not emerge from the alley, the officer approached the

stopped vehicle from the front without activating flashers. He stopped his

own patrol car at least twenty feet away, turned the lights down to low

beam, got out of his patrol car, and walked up to the driver to engage in a

conversation. This resulted in the officer learning that the driver was

under the influence of alcohol. Eventually it resulted in the driver’s

conviction for driving while intoxicated.

The issue we must decide on appeal is whether the driver was seized

for purposes of the Fourth Amendment to the United States Constitution

or article I, section 8 of the Iowa Constitution when the officer approached

her on foot that evening. We agree with the district court and the court of

appeals that she was not and accordingly affirm the judgment of the

district court and the decision of the court of appeals.

I. Facts and Procedural History.

At about 9:50 p.m. on October 10, 2017, Officer Michael Frazier of

the Boone Police Department was patrolling in residential neighborhoods

of the city east of the hospital area. He noticed that a silver Hyundai was

going very slowly—about ten miles per hour in a twenty-five-mile-per-hour

zone. After about three or four minutes, he saw the Hyundai proceed north

from Second Street into an alley that paralleled Clinton and Jackson

Streets. The alley is wide enough for one lane of traffic and has various

driveways that access it. Officer Frazier proceeded up Clinton Street to

Third Street and waited for the vehicle to exit the alley. When the vehicle

did not come out of the alley, Officer Frazier turned east on Third Street 3

where he saw the Hyundai “had stopped in the mid-block in the alley and

just kind of parked there.” He “saw the vehicle was still sitting there not

knowing if it was occupied or not.” Officer Frazier decided to turn south

into the alley and pull in front of the Hyundai “to see what was going on.”

The lights of the Hyundai were still on, but Officer Frazier could not tell

whether anyone was in the vehicle until he pulled into the alley.

Officer Frazier did not activate his flashers. Instead, he parked his

patrol car at least twenty feet from the Hyundai, left his own low beams

on, got out, and walked up to the Hyundai. At that point, the driver of the

Hyundai, Kari Fogg, opened her door. Officer Frazier asked “whether

everything was okay, what was going on.” Fogg responded that “she lived

in the area and was checking to see if the alley was crooked or something

to that effect, that she had to report to the city.”

Officer Frazier smelled a strong odor of an alcoholic beverage coming

from the vehicle. He also noticed red and watery eyes and some slightly

slurred speech. He asked Fogg how much she had had to drink that

evening, and she initially stated “nothing.” Soon thereafter she changed

her answer and said she had had two glasses of wine. Fogg was asked to

perform some field sobriety tests. She failed them. Fogg refused a

preliminary breath test and was arrested for operating while intoxicated

(OWI). At the jail, Fogg refused a chemical test.

Fogg was charged with OWI, first offense, in violation of Iowa Code

section 321J.2. See Iowa Code § 321J.2(1)(a), (2)(a) (2017). Fogg moved

to suppress all evidence derived from Officer Frazier’s encounter with her

in the alley, alleging that she was seized without reasonable suspicion in

violation of both the Fourth Amendment to the United States Constitution

and article I, section 8 of the Iowa Constitution. An evidentiary hearing

was held. Officer Frazier testified, and an overhead photograph of the alley 4

was introduced into evidence. On the photograph, Officer Frazier marked

where the Hyundai and his patrol car were parked.

Officer Frazier testified that the vehicle had been driving

suspiciously and that it was suspicious for it to be parked in an alley.

During the summer, Officer Frazier had taken seventeen burglary reports

within the city himself and probably six or so were from that area.

The alley is a public alley. Traffic is permitted in either direction,

but it is only wide enough for one vehicle to proceed at a time without

driving into someone’s yard. Once Officer Frazier pulled in with his patrol

car and stopped a couple of car lengths in front of Fogg’s Hyundai, for Fogg

to leave she would have had to back up about 125 feet to exit the alley or

turn around in a driveway that fronted on the alley. Fogg’s vehicle was

parked near one of those driveways that led into a garage. It also turned

out that she lived only about a block from where she had stopped the

Hyundai in the alley.

The district court denied Fogg’s motion to suppress. While

acknowledging that “[i]t’s a close call,” the court found that Fogg had not

been seized at the time Officer Frazier stopped in the alley and walked up

to her vehicle. The court also alternatively found that Officer Frazier had

reasonable suspicion that criminal activity may have been afoot and would

have been justified in stopping Fogg’s vehicle anyway.

Following a jury trial, Fogg was convicted of OWI, first offense and

sentenced to two days in jail plus a fine and surcharges. See Iowa Code

§ 321J.2(3). Fogg appealed, arguing that her motion to suppress should

have been granted and that her counsel had been ineffective in failing to

object to certain statements made by the prosecutor during rebuttal

closing argument. 5

We transferred the case to the court of appeals. That court affirmed

the conviction. Based on a de novo review of the record and consideration

of the totality of the circumstances, the court of appeals concluded that

“Fogg was not subjected to a seizure in the constitutional sense.” The

court also determined that Fogg’s trial counsel had not been ineffective in

failing to object to the prosecutor’s statements during rebuttal closing

argument. We granted Fogg’s application for further review. 1

II. Standard of Review.

As we have said recently,

“When a defendant challenges a district court’s denial of a motion to suppress based upon the deprivation of a state or federal constitutional right, our standard of review is de novo.” We examine the whole record and “make ‘an independent evaluation of the totality of the circumstances.’ ” “Each case must be evaluated in light of its unique circumstances.”

State v. Coffman, 914 N.W.2d 240, 244 (Iowa 2018) (first quoting State v.

Storm, 898 N.W.2d 140, 144 (Iowa 2017); and then quoting State v. Kurth,

813 N.W.2d 270, 272 (Iowa 2012)).

III. Legal Analysis.

Fogg argues that she was seized on October 10, 2017, in violation of

her rights under the Fourth Amendment and article I, section 8. However,

she does not argue for a separate Iowa constitutional analysis.

When a party does not suggest a framework for analyzing the Iowa Constitution that is different from the framework utilized under the United States Constitution, we apply the general federal framework. However, we reserve the right to apply the federal framework in a different manner.

1When we grant further review, we may exercise our discretion to let the court of appeals decision stand as the final decision on particular issues. See State v. Henderson, 908 N.W.2d 868, 875 (Iowa 2018). Here, Fogg sought further review only on the issue of whether she had been seized when Officer Frazier approached her on October 10, 2017. We exercise our discretion to let the court of appeals decision stand as the final decision on whether her trial counsel was ineffective in failing to object to statements made by the prosecutor during rebuttal closing argument. 6

In re Det. of Anderson, 895 N.W.2d 131, 139 (Iowa 2017) (citation omitted).

The threshold question under both constitutions is often whether

there has been a seizure: “In order for the Fourth Amendment [or article I,

section 8] to apply in this case, there must first be a ‘seizure.’ ” State v.

Wilkes, 756 N.W.2d 838, 842 (Iowa 2008).

Hence, we must determine whether Officer Frazier “seized” Fogg

prior to reasonably suspecting Fogg of operating a motor vehicle while

intoxicated. If no seizure occurred, a motion to suppress on that ground

is without merit.

The defendant has the burden of proof as to whether a seizure

occurred. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 11.2(b), at 58–59 (5th ed. 2012) [hereinafter LaFave,

Search and Seizure] (“The defendant . . . has the burden of proof as

to . . . whether a seizure occurred.”). We explored the question of whether

a seizure had occurred extensively in Wilkes, 756 N.W.2d at 841–45. The

facts of Wilkes are somewhat similar to those here—a vehicle was parked

at night, and a police officer decided to investigate, pulling his patrol car

near to the vehicle, getting out, and walking up to the driver side of the

vehicle.

Atlantic Police Officer Paul Wood and a reserve officer were riding in a patrol car on routine duty the night of January 12, 2007. Around midnight, Wood spotted a white truck with its headlights on and its engine running parked in Schildberg’s Quarry. Although the record does not reveal the exact temperature, Wood testified that it was “pretty cold outside.”

Wood pulled the patrol car into the quarry “to make sure everything was okay with the driver.” While approaching the vehicle, Wood did not activate his emergency lights or siren. He pulled his patrol car to a distance of about ten or fifteen feet from the truck. Although the quarry had only one entrance, the patrol car did not block the entrance in any way. 7 After pulling up behind the truck, Wood and the reserve officer exited the patrol car and approached the vehicle. Wood observed that the truck was occupied by two people. Wood approached on the driver’s side of the truck and the reserve officer walked toward the truck on the passenger side but stayed behind the vehicle. When Wood arrived at the driver’s window, he “basically asked what was going on” and “made sure everything was okay.” Through the opened driver’s window, Wood smelled the strong odor of an alcoholic beverage coming from the driver.

Id. at 840–41.

In Wilkes, we reviewed both our own precedents and those of the

United States Supreme Court. Id. at 842–44. We pointed out that whether

a seizure occurred is determined by “the totality of the circumstances.” Id.

at 842. We quoted the Supreme Court for the proposition that a seizure

does not occur if “a reasonable person would feel free ‘to disregard the

police and go about his business.’ ” Id. at 843 (quoting Florida v. Bostick,

501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)). Yet, we indicated that

“objective indices of police coercion must be present to convert an

encounter between police and citizens into a seizure.” Id. at 843. We

added that “[t]he element of coercion is not established by ordinary indicia

of police authority.” Id.

In Wilkes we discussed State v. Harlan, a case where we had held

that an officer who parked his patrol car behind the defendant’s stopped

car, walked up to the defendant’s car, and shined a flashlight into the car

did not “seize” the defendant. See Wilkes, 756 N.W.2d at 843–44

(discussing Harlan, 301 N.W.2d 717, 719–20 (Iowa 1981)). We then

commented on the similarity between Wilkes and Harlan. Id. at 844. We

found that no seizure occurred even though the officer parked behind the

defendant’s vehicle, shined headlights in the defendant’s vehicle, and

walked up to the defendant’s vehicle in uniform. Id. We emphasized that

“the use of ordinary headlights at night is simply not coercive in the same 8

manner as the activation of emergency lights which invoke police authority

and imply a police command to stop and remain.” Id. We also found that

the defendant’s ability “to drive away was not substantially impaired,”

because “there were at least two ways for him to turn his truck around

and leave the quarry, had he chosen to do so.” Id.

We concluded as follows: “Simply put, neither of the officers

displayed coercive or authoritative behavior to transform this encounter

into a seizure for Fourth Amendment purposes.” Id.

The overview that we provided in Wilkes is sound law, and it remains

the law today. We recognize that one of the norms of society we have grown

up with is that we should cooperate with law enforcement. Fogg may have

been operating under that norm. However, for a seizure to occur, there

must be more—“objective indices of police coercion,” “[t]he element of

coercion,” or “coercive or authoritative behavior.” Id. at 843, 844. One

way of looking at the matter is whether the officer was simply engaging in

activity that any private person would have a right to engage in. See id. at

844; Harlan, 301 N.W.2d at 720.

Under the circumstances of this case, we conclude there was no

seizure. Officer Frazier never activated the emergency lights on his vehicle.

He parked at least twenty feet away from Fogg’s parked vehicle and

approached her on foot. He did not shine a light into or knock on Fogg’s

vehicle. In fact, Fogg opened her car door before Officer Frazier arrived.

Officer Frazier engaged in conversation to ask if everything was ok and

what was going on. None of this is objectively coercive.

Fogg’s appeal boils down to a simple point. The alley was only wide

enough for one car at a time, and by driving down it from the north, Officer

Frazier created a situation where she would have had to leave by backing

up about 125 feet to the south. 9

But the alley was a public alley that was not posted for a single

direction of traffic. Officer Frazier had as much right to pull in from the

north and park as Fogg did to pull in from the south and park.

Officer Frazier was not doing something a private person could not have

done.

At oral argument, Fogg’s counsel suggested that in order to have a

consensual encounter with Fogg rather than a seizure, Officer Frazier

could have chosen one of two alternatives. First, he could have parked on

Third Street and then walked down the alley until he reached Fogg’s

vehicle. Second, he could have driven all the way around the block and

then approached Fogg’s vehicle from behind and parked behind her.

Both alternatives would have taken more time and would have

involved a less direct and convenient route to Fogg’s vehicle. We do not

believe the Fourth Amendment or article I, section 8 require Officer Frazier

to undergo this extra time and inconvenience. Moreover, the first

alternative would have likely increased the personal risk to Officer Frazier

by separating him from his vehicle. The second alternative could have

made Fogg feel more apprehensive: it was 9:50 p.m., and she might have

been unable to tell that the vehicle approaching her from behind was a

patrol car.

Additionally, on our de novo review of the record, we conclude that

Fogg would not have needed to back up 125 feet to leave. The aerial

photograph of the alley shows at least three spots between Fogg’s current

location and Second Street where Fogg could have turned around. Officer

Frazier did initially testify that for Fogg to leave, she would have to back

up the alley all the way to Second Street. However, at the end of cross-

examination, Fogg’s counsel asked him to review the aerial photograph

again. At this point Officer Frazier confirmed the presence of two garages 10

(each of which is shown on the photograph as having a driveway) and one

driveway without garage. All of these opened onto the alley and were

accessible to Fogg’s vehicle as places where she could have turned around

her vehicle. One was very near to Fogg’s vehicle.

This was not a situation where the police officer “activate[d] his

emergency lights and block[ed] in [the defendant’s] parked vehicle.” Kurth,

813 N.W.2d at 278. Nor was it a situation where the officer parked his

vehicle in the middle of the defendant’s driveway, blocking in the

defendant’s vehicle; left the emergency lights on; and insisted that the

defendant return from his front porch to the driveway and talk to him. See

State v. White, 887 N.W.2d 172, 176–77 (Iowa 2016) (per curiam).

It is true that Fogg could not have driven forward. However, she

could have driven backward either with or without turning around. She

was not “boxed in.” 4 LaFave, Search and Seizure § 9.4(a) n.122, at 596–

97. “[T]here was an avenue by which [Fogg] could have actually left.”

County of Grant v. Vogt, 850 N.W.2d 253, 265, 268 (Wis. 2014) (finding no

seizure when the deputy pulled up behind a vehicle in a parking lot, got

out, and knocked on the window of the defendant’s car because the

defendant could have “pulled forward and turned around”). “[Fogg] could

have backed up and driven away from the encounter . . . .” State v.

Randle, 276 P.3d 732, 732, 735, 739 (Idaho Ct. App. 2012) (upholding the

denial of a motion to suppress when an officer parked two car lengths

behind the defendant’s car which was abutting a grassy knoll, approached

the vehicle, and knocked on the driver’s side window); see also Erickson v.

Comm’r of Pub. Safety, 415 N.W.2d 698, 701 (Minn. Ct. App. 1987)

(upholding the denial of a motion to suppress when “the officers parked

their vehicles in front of the entryway and by appellant’s truck in order to 11

be as close as possible to the entrance, and not to intentionally block and

seize appellant”).

As LaFave has explained, after recognizing that there are “moral and

instinctive pressures to cooperate” with the police,

[T]he confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.

4 LaFave, Search and Seizure § 9.4(a), at 581–82 (footnotes omitted). We

agree with the courts below that no seizure occurred under the Fourth

Amendment or article I, section 8 until after Officer Frazier observed the

signs of intoxication on Fogg.

IV. Conclusion.

For the foregoing reasons, we affirm Fogg’s conviction and sentence.

DECISION OF COURT OF APPEALS AND DISTRICT COURT

JUDGMENT AFFIRMED.

All justices concur except Appel, J., and Wiggins, C.J., who dissent. 12

#18–0483, State v. Fogg

APPEL, Justice (dissenting).

In this case, we consider whether an automobile driver was seized

when a uniformed officer approached the vehicle after blocking the exit to

a residential alleyway with his patrol car. If the driver was, in fact, seized,

we then consider whether the warrantless seizure was supported by

reasonable suspicion of criminal activity or allowable as a community

caretaking function.

The defendant filed a motion to suppress evidence of operating while

intoxicated (OWI) obtained by police as a result of the incident. The district

court, while finding the question of a seizure “a close call,” held that the

police had reasonable suspicion that criminal activity might be afoot in

light of recent residential burglaries in the area.

The majority today upholds the district court in finding that no

seizure occurred under the Fourth Amendment of the United States

Constitution or article I, section 8 of the Iowa Constitution. For the

reasons expressed below, I strongly disagree and instead would vacate the

court of appeals ruling, reverse the district court’s order, and remand the

case to the district court.

I. Factual and Procedural Background.

Shortly before 10:00 p.m. on the evening of October 10, 2017, Boone

Police Officer Michael Frazier was patrolling the east side of the city. The

officer saw a silver Hyundai driving slowly through a residential

neighborhood at a speed the officer estimated was ten miles per hour. The

vehicle turned into a narrow alleyway and stopped midway in the alley

with its lights on.

Officer Frazier decided to “see what was going on.” The officer circled

back, entered the alley from the opposite direction, and stopped his patrol 13

vehicle, with the headlights on, in front of the Hyundai. Then, Officer

Frazier initiated procedures to determine the ownership of the vehicle by

running the license plate number as he alighted and approached the

As Officer Frazier approached, Kari Fogg opened her car door and

exited the vehicle. She told the officer she was checking to see if the alley

was crooked. The officer stated he smelled alcohol on her breath and

commenced an OWI inquiry. Subsequently, Fogg admitted to consuming

two glasses of wine and some prescription medication prior to driving.

Officer Frazier asked Fogg to perform a series of roadside sobriety

tests. Frazier detected six clues on Fogg’s horizontal-gaze nystagmus test

and also noted the presence of vertical-gaze nystagmus. Fogg attempted

to walk and turn but did not complete the test, indicating concern that she

would fall. She declined to perform the one-legged stand. Frazier

requested a preliminary breath test, which Fogg declined.

At that point, Officer Frazier arrested Fogg and took her to the police

station. At the station, Frazier gave Fogg the opportunity to call an

attorney, but Fogg was unable to reach one. She refused to consent to the

blood test.

Fogg was subsequently charged with OWI, first offense, under Iowa

Code section 321J.2 (2017). Fogg filed a motion to suppress all evidence

because Frazier had no probable cause or reasonable suspicion to stop her

and the warrantless stop violated the search and seizure provisions of the

Iowa Constitution, article I, section 8 and the Fourth Amendment of the

United States Constitution.

The State resisted the motion to suppress. The State asserted the

encounter between Officer Frazier and Fogg was consensual and not a

seizure, thereby avoiding the warrant requirements under the Iowa and 14

Federal Constitutions. In the alternative, the State argued that if there

was a seizure, the warrantless stop was supported by reasonable suspicion

that Fogg was driving under the influence or the conduct was justified

under the community caretaking exception to the warrant requirement.

The resistance did not suggest that Officer Frazier had reasonable

suspicion about a burglary in progress.

At the suppression hearing, however, Frazier was asked on direct

examination if he was suspicious that a particular crime was being

committed. He stated,

I wasn’t sure. A lot of burglaries happen on that side of town, so I wasn’t sure if someone was getting dropped off to do vehicle burglaries or garage burglaries in the area. It was just all around suspicious. Just wanted to make sure they were okay.

Counsel sought a clearer explanation of Frazier’s reasoning during cross-

examination. Frazier testified, “At that time I really didn’t know until I

made contact. I didn’t know what was going on.” Pressed further, Frazier

stated,

I had no idea, sir. I thought it was a possibility something was going on or it was somebody who was broken down in the alley. I didn’t know.

....

. . . A. I was suspicious of her driving behavior before then where she was parked at at the time or where she had stopped at.

The district court denied the motion to suppress. According to the

district court, the question of whether a seizure occurred “was a close call.”

But even if there was a seizure, the district court concluded that Officer

Frazier had reasonable suspicion that a burglary was in progress. 15

The case proceeded to trial. At trial, two witnesses testified: Fogg

and Frazier. Officer Frazier’s interactions with Fogg were captured on

video and presented to the jury.

Officer Frazier was asked again about the nature of his activity that

night. Frazier confirmed that he was patrolling one of the neighborhoods

“on the east side [of Boone].” In approaching the car, Frazier stated,

I wasn’t sure what this person was doing. I didn’t know who –- I hadn’t run the license plate. I didn’t know who it was. A male or female, young or old, if they lived in the neighborhood. I was concerned with burglaries over the summertime, that someone was maybe cruising the alleys casing some garages. I just -– I didn’t know what was going on. The behavior was strange.

The jury convicted Fogg. She now appeals. For the reasons

expressed below, the court should have reversed.

I conclude, along with the majority, that a challenge to a motion to

suppress on state or federal constitutional grounds is reviewed de novo.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). Indeed, the appellate court undertakes “an independent evaluation of the totality of the

circumstances as shown by the entire record.” State v. Turner, 630 N.W.2d

601, 606 (Iowa 2001) (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa

1993)). However, the allocation of burden in this case is worthy of

emphasis: The state bears the burden of showing by a preponderance of

the evidence that an officer’s warrantless seizure was constitutional. State

v. Tague, 676 N.W.2d 197, 201 (Iowa 2004).

III. Discussion.

A. Introduction. In order to resolve the issues in this case, we

must answer a series of questions, the first being whether Fogg was

subject to a seizure under the Iowa or Federal Constitution. If she was 16

not, there is no basis to suppress the evidence offered at trial that resulted

in her conviction.

The State claimed in the district court that Officer Frazier had

reasonable suspicion to believe that criminal activity was afoot and thus a

warrant was not required. Alternatively, the State argued that the seizure

was supported by the community caretaking exception to the warrant

requirement. In its brief on appeal, however, the State does not defend the

actions of Frazier based on these exceptions to the warrant requirement.

The State’s briefing before this court relies solely on whether there was a

seizure in this case.

Fogg also claims that her conviction should be reversed because of

prosecutorial misconduct arising from what she claims were improper

arguments made to the jury by the prosecutor during rebuttal. The State

contends that even if the prosecutor’s arguments were impermissible, Fogg

cannot show she was prejudiced by them.

B. Was There a Seizure?

1. Introduction.

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear authority of law.

Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891).

The “inestimable right of personal security belongs as much to citizens on

the streets of our cities as to the homeowner closeted in his study to

dispose of his secret affairs.” Terry v. Ohio, 392 U.S. 1, 8–9, 88 S. Ct. 1868,

1873 (1968).

The warrant requirement is designed to provide broad protection by

“safeguard[ing] the privacy and security of individuals against arbitrary 17

intrusion by government officials.” State v. Crawford, 659 N.W.2d 537,

541 (Iowa 2003) (quoting State v. Brecunier, 564 N.W.2d 365, 367 (Iowa

1997)). The warrant requirement includes not only particularity but a

requirement of antecedent justification central to search and seizure law.

State v. Short, 851 N.W.2d 474, 502 (Iowa 2014). Indeed, as Justice

Jackson stated long ago,

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 13–14, 68 S. Ct. 367, 369 (1948).

Here, it is undisputed that Officer Frazier did not have a warrant to

search or seize Fogg. Warrantless seizures are per se unreasonable unless

an exception to the warrant requirement exists. State v. Hoskins, 711

N.W.2d 720, 725–26 (Iowa 2006). The question here is whether a

warrantless seizure occurred.

2. Positions of the parties. Fogg maintains that she was seized

because no reasonable person, under the circumstances, would have felt free to leave the alley. Fogg points out that Officer Frazier blocked her

egress from the alley with his patrol car. She points to testimony from

Frazier that she could not have proceeded down the one-lane alley without

driving over residential lawns. The only other option, Fogg contends,

would have been driving in reverse, in the dark, down the narrow alley for

about 125 feet while the headlights from the officer’s car were shining in

her face. Under these circumstances, her ability to drive away was

substantially impaired, a significant factor in the determination of whether 18

a seizure has occurred under State v. Wilkes, 756 N.W.2d 838, 843–44

(Iowa 2008).

The State agrees with Fogg that the test of whether a seizure occurs

is whether a reasonable person would feel free to leave and that the

question is determined based on the totality of the circumstances. Id. at

842; State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004). According to the

State, however, the facts and circumstances of the interaction between

Fogg and Frazier show not a seizure but a consensual encounter. See

United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 2110 (2002)

(stating absent coercive means, “[i]f a reasonable person would feel free to

terminate the encounter, then he or she has not been seized”).

The State emphasizes that ordinary indicia of authority—such as a

badge, the fact that an officer is in uniform, or the fact that an officer is

visibly armed—has little weight in the analysis. See Reinders, 690 N.W.2d

at 82 (“Police questioning by itself, however, is generally not a seizure.”);

State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997) (“A seizure occurs when

an officer by means of physical force or show of authority in some way

restrains the liberty of a citizen.”); cf. State v. White, 887 N.W.2d 172, 176–

77 (Iowa 2016) (per curiam) (finding a seizure occurred when a uniformed

officer, displaying both gun and badge, blocked defendant’s garage and

insisted defendant speak with him). The State emphasizes that Officer

Frazier did not activate his emergency lights to signal the defendant to pull

over. See State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981) (“The use of

sirens, flashing lights or other signals to pull a moving vehicle to the side

of the road might also constitute a show of authority that is a seizure.”).

The State asserts that the defendant’s car was already parked and that

Officer Frazier merely parked twenty feet away, then approached the

defendant’s vehicle, but did not issue any commands. The State 19

additionally reasons that Fogg could have exited the narrow alleyway by

either driving in reverse or using a private driveway to turn her car around

and leave.

3. United States Supreme Court precedent. Under the United States

Constitution, a seizure occurs if “the police conduct would ‘have

communicated to a reasonable person that he was not at liberty to ignore

the police presence and go about his business.’ ” Florida v. Bostick, 501

U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991) (quoting Michigan v.

Chesternut, 486 U.S. 567, 569, 108 S. Ct. 1975, 1977 (1988)); see also

United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877

(1980) (plurality) (finding the test for seizure is whether “a reasonable

person would have believed that he was not free to leave”). Fogg does not

argue for a different standard under the Iowa Constitution.

Under the Bostick–Mendenhall test, the determination of whether a

reasonable person would feel free to leave is “an independent evaluation

[based on] the totality of the circumstances as shown by the entire record.”

State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (alteration in original)

(quoting State v. Krogman, 804 N.W.2d 518, 522 (Iowa 2011)). The “free

to leave” Bostick–Mendenhall test is not dependent on the subjective state

of mind of the individual approached by police but is an objective standard

based on that of a reasonable person. See Chesternut, 486 U.S. at 573–

74, 108 S. Ct. at 1979–80.

The Bostick–Mendenhall standard has been applied in countless

search and seizure cases in state and federal courts. Disputes in the

caselaw are generally about application of the legal standard to the

circumstances presented in a given case. See County of Grant v. Vogt, 850

N.W.2d 253, 270 (Wis. 2014) (Ziegler, J., concurring). Many courts

applying the Bostick–Mendenhall standard declare the case is “close” 20

before making the ultimate decision. See, e.g., People v. Cascio, 932 P.2d

1381, 1385 (Colo. 1997) (en banc) (noting that the distinction between a

consensual encounter and investigatory stop is “sometimes subtle” and

presents a “close question”); State v. Jestice, 861 A.2d 1060, 1062 (Vt.

2004) (finding a “close question” of seizure with a uniformed officer in a

marked police vehicle shining headlights into defendant’s car and

essentially blocking defendant’s exit).

Application of the free-to-leave standard to particular facts by a

majority of the United States Supreme Court has generated sharp dissent.

By way of example, the Supreme Court’s application of the free-to-leave

doctrine yielded a controversial result in INS v. Delgado, 466 U.S. 210, 104

S. Ct. 1758 (1984). In Delgado, INS officers entered two factories and

questioned the entire work force looking for illegal workers. Id. at 212,

104 S. Ct. at 1760. INS agents were posted at the doors of the exits to the

factories and caused “some disruption.” Id. at 218, 104 S. Ct. at 1763.

The workers, however, were free to move around the factory floors. Id. The

Court found no seizure. Id. at 220–21, 104 S. Ct. at 1765.

Justice Brennan, joined by Justice Marshall, dissented. According

to Justice Brennan, the majority opinion reflected “a studied air of

unreality” and reached its conclusion “only through a considerable feat of

legerdemain.” Id. at 226, 104 S. Ct. at 1767–68 (Brennan, J., dissenting).

Although there was no physical restraint on individuals, Justice Brennan

emphasized the show of authority represented by a force of fifteen to

twenty-five agents systematically sweeping the workforce floor with guards

stationed at each exit. Id. at 229–30, 104 S. Ct. at 1769–70. According to

Justice Brennan, no reasonable person would have felt free to leave or

terminate the encounter with the INS officers. Id. at 230, 104 S. Ct. at

1770. 21

Another controversial free-to-leave case is Drayton, 536 U.S. 194,

122 S. Ct. 2105, where the Supreme Court considered whether passengers

on a bus were seized under the Fourth Amendment. In Drayton, three

plainclothes officers boarded a bus. Id. at 197, 122 S. Ct. at 2109. One

officer knelt backwards in the driver’s seat at the front of the bus where

all passengers could be observed. Id. at 197–98, 122 S. Ct. at 2109. A

second officer was stationed at the back of the bus, while a third officer

moved up and down the bus questioning passengers. Id. at 198, 122 S. Ct.

at 2109. A 6–3 majority of the Supreme Court held that no seizure

occurred under these facts. Id. at 208, 122 S. Ct. at 2114. The majority

reasoned that a reasonable person would feel free to terminate the

encounter with the police. Id. at 206–07, 122 S. Ct. at 2113–14. Justice

Souter, along with Justices Stevens and Ginsburg, dissented, asserting

that the presence of the officers created an “atmosphere of obligatory

participation” that no reasonable person would feel free to terminate. Id.

at 212, 122 S. Ct. at 2116 (Souter, J., dissenting).

A third controversial application of the free-to-leave doctrine by the

Supreme Court is California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct.

1547, 1550–51 (1991). In Hodari D., the Court considered whether a

defendant was seized. The defendant was standing with other youths in

what the Court labeled a high crime area. Id. at 622–23, 111 S. Ct. at

1549. When an unmarked police car approached, the youths ran. Id. at

623, 111 S. Ct. at 1549. The officers pursued the defendant, and a few

seconds before he was tackled, the defendant threw a rock of cocaine. Id.

A California appellate court had ruled that the encounter became a seizure

when the officers ran after the defendant. In re Hodari D., 265 Cal. Rptr.

79, 82–83 (Ct. App. 1989), rev’d sub nom. Hodari D., 499 U.S. 621, 111 S.

Ct. 1547. 22

In the Supreme Court’s reversal, the majority found that the seizure

did not occur until hands were laid on the suspect. Hodari D., 499 U.S.

at 628–29, 111 S. Ct. at 1552. The majority opinion focused on the

common law of arrest rather than the Bostick–Mendenhall standard. Id.

Justice Stevens, joined by Justice Marshall, dissented. Justice Stevens

emphasized that a seizure occurs when an individual’s personal liberty is

restrained “in some way” and that under the facts and circumstances, a

seizure clearly occurred. Id. at 637, 111 S. Ct. at 1556 (Stevens, J.,

dissenting).

The application of the Bostick–Mendenhall standard by the Supreme

Court in these cases and others has drawn criticism among scholars.

According to Professor Wayne LaFave, “the Court finds a perceived freedom

to depart in circumstances when only the most thick-skinned of suspects

would think such a choice was open to them.” Wayne R. LaFave,

Pinguitudinous Police, Pachydermatous Prey: Whence Fourth Amendment

Seizures, 1991 U. Ill. L. Rev. 729, 739–40 (1991).

So too has the free-to-leave standard been criticized by lower courts.

It is, of course, a convenient legal fiction to suppose that most people would elect to walk away from a police officer who asks to speak with them. Most would probably believe that it is, at least, in their best interests to cooperate, if not their duty. Indeed, walking away, or more precisely flight, can itself be a basis for a seizure.

State v. Wilt, No. 19108, 2002 WL 272593, at *4 (Ohio Ct. App. Feb. 22,

2002); see, e.g., United States v. Schuett, No. 11-20574-BC, 2012 WL

3109394, at *6 (E.D. Mich. July 31, 2012) (“The ‘free to walk away’ test is,

it must be acknowledged, a legal fiction.”); Hill v. Commonwealth, 812

S.E.2d 452, 463 (Va. Ct. App. 2018) (“[T]he encounter is not consensual at

all and our oft repeated observation that these encounters are by definition

consensual because citizens can ignore the officer and just walk away is 23

as much a legal fiction as most citizens believe it to be.”), aff’d, 832 S.E.2d

33 (Va. 2019); Vogt, 850 N.W.2d at 262 n.14 (majority opinion) (“To some

extent, the ‘reasonable person’ here is a legal fiction. That defendants

often consent to searches of areas that reveal incriminating evidence

demonstrates that people often do not feel free to decline an officer’s

request, even absent a manifest show of authority.”).

Critics point to social-psychological research, dating to the Milgram

1963 obedience-to-authority study, that demonstrate how reasonable,

competent people comply with authority figures despite such compliance

cutting against their interest or judgment. See, e.g., Janice Nadler, No

Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct.

Rev. 153, 175–77 (2002) (comparing and contrasting the Milgram

experiment with the fact pattern of Drayton); Ric Simmons, Not “Voluntary”

but Still Reasonable: A New Paradigm for Understanding the Consent

Searches Doctrine, 80 Ind. L.J. 773, 815, 817–18 (2005) [hereinafter

Simmons] (citing to studies finding civilians largely consent to all search

requests and criticizing the focus of the free-to-leave doctrine on civilian

rather than officer conduct, as well as finding little consideration of the

myriad reasons a reasonable person may feel unable to decline); Daniel J.

Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality,

Obscurity, and Incivility of the Fourth Amendment Consensual Encounter

Doctrine, 38 San Diego L. Rev. 507, 525–57 (2001) (exploring existing

caselaw to determine attributes of a reasonable person); Marcy Strauss,

Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 236, 239–44

(2001) [hereinafter Strauss] (exploring existing data and finding a number

of factors that may induce compliance with a request or demand from an

officer, particularly in communities of color). 24

Two recent empirical studies support the common sense observation

that most reasonable people do not feel free to leave when approached by

police in a variety of circumstances. For example, a recent study was

conducted to determine when people feel free to leave in situations

involving interactions with police on public sidewalks and in buses. See

David K. Kessler, Free to Leave? An Empirical Look at the Fourth

Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51, 51–52

(2008) [hereinafter Kessler]. The results of the study suggested that

[most] people walking on the sidewalk or riding on a bus would not feel free to leave when approached by a police officer and asked questions. . . . Even people who knew they had the right to leave or not talk to the police officer still did not feel free to leave.

Id. at 87.

The second study, examining how people react to security officers,

revealed that none of the eighty-three people studied questioned the

authority of the security officers. Alisa M. Smith et al., Testing Judicial

Assumptions of the “Consensual” Encounter: An Experimental Study, 14

Fla. Coastal L. Rev. 285, 291 (2013) [hereinafter Smith]. The authors

conclude that the research “contradicts the judicial assumption that reasonable people feel free to ignore officers, decline their requests, and

terminate encounters with them, or alternatively that they are not merely

submitting to the authority of the police during these encounters.” Id. at

318; see also Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity

in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. &

Criminology 437, 439–42 (1988) (criticizing the free-to-leave doctrine, and

finding that actual application should result in virtually all police–citizen

encounters being seizures). 25

In this case, Fogg claims that the unwarranted seizure in this case

was unlawful under both article I, section 8 of the Iowa Constitution and

the Fourth Amendment of the United States Constitution. Fogg does not

suggest, however, that we should apply a standard other than that

established by the United States Supreme Court under Bostick–

Mendenhall. When a party raises the Iowa Constitution but does not

suggest a standard different than the federal precedent, we may apply the

standard more stringently than the federal caselaw. See State v. Oliver,

812 N.W.2d 636, 649–50 (Iowa 2012) (applying more stringent gross

disproportionality review under the Iowa Constitution than the Federal

Constitution); Pals, 805 N.W.2d at 771–72 (“Even where a party has not

advanced a different standard for interpreting a state constitutional

provision, we may apply the standard more stringently than federal

caselaw.”); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009) (finding

that even when applying the general principles of the United States

Supreme Court, federal standards may be differently applied under Iowa

Supreme Court review). See generally Cynthia Lee, Reasonableness with

Teeth: The Future of Fourth Amendment Reasonableness Analysis, 81 Miss.

L.J. 1133 (2012) (discussing the current framework utilized by the United

States Supreme Court and urging more stringent review of reasonableness

by courts).

4. Iowa caselaw on seizure of blocked vehicles. We have had two

cases that have considered application of search and seizure principles

involving parked vehicles: Harlan, 301 N.W.2d 717, and Wilkes, 756

N.W.2d 838. Both cases involved efforts to suppress evidence arising from

warrantless seizures under the Fourth Amendment.

In Harlan, we considered a challenge to a vehicle search of a driver

of a parked vehicle in the early morning hours. 301 N.W.2d at 718–19. 26

After following the defendant, the officer in Harlan pulled his cruiser over

and approached the driver of the vehicle. Id. at 719. When the officer

shined his flashlight into the vehicle, he saw that the driver’s eyes were

watery and bloodshot. He also smelled alcohol emanating from the

defendant. Id. The officer asked the defendant to perform field sobriety

tests and ultimately arrested the defendant for OWI. Id.

We held in Harlan that there was no seizure prior to the officer

obtaining reasonable suspicion to believe that the driver was driving his

vehicle while intoxicated. Id. at 720. We emphasized that the record

showed no threat of physical force, no use of compelling language, no use

of sirens, and no forced stop. Id.

In the second case, Wilkes, a uniformed officer shined headlights on

a truck parked in a quarry around midnight. 756 N.W.2d at 840, 844.

The officer pulled his vehicle to a distance of ten or fifteen feet behind the

truck. Id. at 840–41. The officer’s vehicle did not block the entrance to

the quarry in any way. Id. When the officer approached the defendant’s

vehicle, he smelled a strong odor of alcohol emanating from the defendant.

Id. at 841. After field sobriety and a preliminary breath test were

administered, Wilkes was arrested for OWI. Id. The district court and the

court of appeals concluded that an unlawful seizure had occurred and

suppressed the evidence obtained as a result of the seizure. Id.

We held in Wilkes that no seizure occurred under the facts of the

case. Id. at 844. We emphasized that while the police vehicle was parked

behind the vehicle driven by the defendant, “the ability of [the defendant]

to drive away was not substantially impaired.” Id. Indeed, we noted that

the defendant himself testified at the hearing that there were “at least two

ways for him to turn his truck around and leave the quarry, had he chosen

to do so.” Id. 27

5. State and federal caselaw. Although each case turns on its

unique facts, we have surveyed state and federal caselaw for guidance on

what constitutes a seizure in the context of police parking their

automobiles and approaching other automobiles. While “the officer’s

conduct is the primary focus,” other factors such as “time, place, and

attendant circumstances” have a bearing on the court’s analysis as well.

State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008).

In general, however, the cases suggest that where the facts

demonstrate a police vehicle blocks another vehicle from egress, a seizure

ordinarily occurs. See United States v. See, 574 F.3d 309, 311 (6th Cir.

2009) (holding that “the blocking of [the defendant’s car with a marked

patrol car] to determine the identity of the occupants and maintain the

status quo while obtaining this information was a warrantless Terry

seizure. . . . [A] reasonable person in [the defendant’s] position would not

have felt free to leave.”); United States v. Kerr, 817 F.2d 1384, 1386–87

(9th Cir. 1987) (finding that when a uniformed officer approached a car

after blocking the one-lane driveway as defendant was backing out, a

seizure occurred, leaving defendant with “no reasonable alternative except

an encounter with the police”); State v. Rosario, 162 A.3d 249, 255 (N.J.

2017) (“A person sitting in a lawfully parked car outside her home who

suddenly finds herself blocked in by a patrol car that shines a flood light

into the vehicle, only to have the officer exit his marked car and approach

the driver’s side of the vehicle, would not reasonably feel free to leave.”);

People v. Jennings, 385 N.E.2d 1045, 1045–46 (N.Y. 1978) (holding that

where police park perpendicular to car in parking lot, thereby blocking

vehicle, seizure occurs); Jestice, 861 A.2d at 1062–63 (finding a seizure

occurred where a uniformed officer parked police vehicle with headlights

on nose to nose with defendant’s car, even though there was still room to 28

maneuver cars). As aptly stated by Professor Wayne LaFave, “boxing the

car in,” among other things, “will likely convert the event into a Fourth

Amendment seizure.” 4 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 9.4(a), at 596–99 (5th ed. 2012).

The cases finding a seizure arising from the blocking of the

defendant’s vehicle by a police vehicle do not require complete closure of

all theoretical routes of egress. Instead, it is sufficient if the police vehicle

substantially limits maneuverability of the defendant’s vehicle. See

Johnson v. State, 414 S.W.3d 184, 193 (Tex. Crim. App. 2013) (finding

seizure certainly occurred when officer shone lights into and blocked

appellant’s car such that appellant would have had to “maneuver” his car

from its parking place if he wished to terminate the interaction); Jestice,

861 A.2d at 1062–63 (holding seizure occurs even though police cruiser

did not completely block defendant’s vehicle, but that defendant would

have had to back up and maneuver to avoid the officer). To find otherwise

inappropriately sterilizes the search and seizure protections and

would undermine “the right of the people to be secure in their persons, houses, papers and effects,” and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police- state where they are the law.

Johnson, 333 U.S. at 17, 68 S. Ct. at 370–71 (quoting U.S. Const. amend.

IV).

Further, the cases finding a seizure arising from the blocking of a

defendant’s vehicle by a police car do not require that the vehicle actually

come to a stop as a result of police action but only that the person in the

vehicle reasonably believe that he or she is not free to leave. See People v.

Guy, 329 N.W.2d 435, 440 (Mich. Ct. App. 1982) (“Although the initial stop

of the [defendant’s vehicle] in the driveway was not a result of [the officer’s] 29

actions, [the officer’s] partial blockage of the driveway and subsequent visit

to the [vehicle] clearly constituted a detention of the automobile and would

be the equivalent of a police initiated ‘stop.’ ”); Rosario, 162 A.3d at 255

(“The difference between a field inquiry and an investigative detention

always comes down to whether an objectively reasonable person would

have felt free to leave or to terminate the encounter with police. The

encounter is measured from a defendant’s perspective.”); Thomas v. State,

633 S.W.2d 334, 335 (Tex. App. 1982) (“Thus, when a person is sitting in

a parked car and a police officer orders him to roll down the window or to

open the door, there is at that point a temporary seizure.”); State v. Smith,

781 P.2d 879, 881 (Utah Ct. App. 1989) (stating question is whether

reasonable individual would believe they were not free to leave),

disapproved of on other grounds by State v. Lopez, 873 P.2d 1127, 1134–

35, 1135 n.3 (Utah 1994); State v. Burgess, 657 A.2d 202, 203 (Vt. 1995)

(“Courts have long held that a show of authority tending to inhibit a

suspect’s departure from the scene is sufficient to constitute a stop, even

though the vehicle is already stopped at the time of an approach by

police.”). These cases are consistent with the approach of the United

States Supreme Court in Adams v. Williams, 407 U.S. 143, 144–45, 149,

92 S. Ct. 1921, 1922–23, 1925 (1972), where implicit in the Supreme

Court’s opinion is the notion that a suspect who is already stationary does

not preclude the finding of seizure.

On the other hand, when a police vehicle merely parks beside or

behind a vehicle, or where the egress is only slightly restricted, a seizure

does not occur. See United States v. Carr, 674 F.3d 570, 573 (6th Cir.

2012) (finding no seizure occurred when the position of the police vehicle

left ample room for defendant to maneuver around the police vehicle);

United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir. 2003) (finding no 30

seizure occurred when the position of the police vehicle does not impede

defendant’s egress); Cascio, 932 P.2d at 1386–87 (noting where egress is

“only slightly restricted” by police vehicle, no seizure occurs); People v.

Black, 872 N.Y.S.2d 791, 793 (App. Div. 2009) (finding no seizure occurred

when defendant’s car was already stopped and police “did not park their

patrol vehicle in such a manner as to block the driveway in which the

vehicle was parked”). Generally, there must be additional facts and

circumstances to support a seizure, such as the glare of a spotlight or

other affirmative acts to generate a reasonable belief that the individual is

not free to leave. See Burgess, 657 A.2d at 203 (holding that a seizure

occurred when the officer pulled up behind defendant’s vehicle and

activated flashing blue police lights).

6. Discussion. Based on my review of the entire record, I conclude

that Fogg was seized in violation of article I, section 8 of the Iowa

Constitution.

Surely it is clear beyond peradventure that the Iowa founders were devoted to civil liberties. Iowa’s state motto—“Our liberties we prize and our rights we will maintain”—is not just a slogan but reflects a libertarian spirit rather than state authoritarianism.

State v. Brown, 930 N.W.2d 840, 882 (Iowa 2019) (Appel, J., dissenting).

The clear trend in the caselaw is to find a seizure when a police officer

substantially blocks a vehicle from leaving the scene, even if already

parked. Here, there is no question that Officer Frazier’s squad car

substantially impaired the ability of Fogg to leave the scene. The fact that

Fogg could have conceivably escaped is not determinative. See Johnson,

414 S.W.3d at 193; Jestice, 861 A.2d at 1062–63.

In addition, the totality of the circumstances here suggest a seizure

occurred. The headlights of the police cruiser shined head on, directly into 31

Fogg’s windshield. Officer Frazier approached the vehicle in full uniform.

Fogg was parked in a residential alley at 10:00 p.m. Under these

circumstances, we are confident that no reasonable person would feel free

to simply ignore the officer and leave the scene. Common sense, social-

psychological research, and empirical studies combine to strongly suggest

that reasonable people generally do not believe they can simply disregard

an approaching, uniformed police officer, and certainly would not feel free

to leave under the circumstances of this case. See generally Kessler, 99

J. Crim. L. & Criminology at 87; Simmons, 80 Ind. L.J. at 817–18; Smith,

14 Fla. Coastal L. Rev. 285 at 318; Strauss, 92 J. Crim. L. & Criminology

at 239–44.

It would be sheer poppycock to suggest that a reasonable person in

the circumstances of the case at hand would have felt free to avoid the

police vehicle blocking the alleyway while a uniformed officer approached.

Indeed, as Professor James Adams has noted,

Citizens are caught in a “Catch 22.” Exercise of citizen rights in the face of police rights may cause police to escalate the intrusiveness of the encounter and place the citizen at risk of both physical harm and formal arrest. Failure to exercise citizen rights by responding to the officer, however, may be viewed as consensual conduct removing the encounter from Fourth Amendment analysis.

James A. Adams, Search and Seizure as Seen by Supreme Court Justices:

Are They Serious or Is This Just Judicial Humor, 12 St. Louis U. Pub. L.

Rev. 413, 441 (1993). A reasonable person in Fogg’s shoes would have

reason to fear the consequences of a mad dash to escape, which could end

in the application of force or potential criminal charges.

A central pillar of our legal system is truth telling. A legal system

that trumpets robust protection to individuals based on their reasonable

belief and then applies the principle out of existence risks losing public 32

trust. It is hard to see how anyone could seriously believe that under the

circumstances presented here, a reasonable person would feel free to bob,

dodge, and evade Officer Frazier. Would a reasonable person, faced with

a marked patrol car blocking forward progress and shining headlights in

her face, attempt to back 125 feet down a dark, narrow alleyway as a

uniformed officer marched toward her? Would a reasonable person

attempt a three-point turn, on darkened private property no less, or

alternatively, drive in a darkened, grassy, unfamiliar ditch under these

circumstances? And is the expectation that Officer Frazier would help

direct her as she drove over the neighbor’s grass, or private property, and

then toss a friendly wave and neighborly smile as she drove away? Really?

Perhaps Justice Jackson said it best when he stated that Fourth

Amendment protections are

not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

Brinegar v. United States, 338 U.S. 160, 180–81, 69 S. Ct. 1302, 1313

(1949) (Jackson, J., dissenting). We have consistently held, both

nationally and in Iowa, that constitutional protections against undue

police action are the bulwark against totalitarian state action. Indeed,

[t]he security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause. 33

Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct. 1359, 1361 (1949),

overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 654, 81 S. Ct.

1684, 1691 (1961).

For all the above reasons, I conclude that the district court and

today’s majority should have found that a seizure occurred in this case

under both the Fourth Amendment of the United States Constitution and

article I, section 8 of the Iowa Constitution.

C. Unbriefed Issues of Reasonable Suspicion and Community

Caretaking. Although the State below urged the district court to deny the

motion to suppress based on reasonable suspicion that a crime was afoot

or upon the community caretaking exception to the warrant requirement,

the State has not briefed these issues in its appeal. When the State does

not raise an argument on appeal, we have found waiver. State v. Dudley,

856 N.W.2d 668, 678–79 (Iowa 2014) (finding that the state waived their

harmless-error argument by failing to raise it on appeal); Short, 851

N.W.2d at 479 (holding that the state waived arguments regarding

allegedly defective warrant or exigent circumstances on appeal due to

failure to raise argument); In re Det. of Blaise, 830 N.W.2d 310, 319–21,

319 n.5 (Iowa 2013) (stating that the state waives their harmless-error

argument by failing to raise on appeal, but noting exception where

defendant claims ineffective assistance of counsel and has burden of

showing prejudice). When the state has declined to raise directly, or by

implication, alternate issues on appeal, reaching the merits of totally

unbriefed claims would require us to assume a partisan role in this

litigation. And we have always held that we will not decide or consider

issues raised for the first time during oral argument. See Inghram v.

Dairyland Mut. Ins., 215 N.W.2d 239, 240 (Iowa 1974) (en banc) (“To reach

the merits of this case would require us to assume a partisan role and 34

undertake the appellant’s research and advocacy. This role is one we

refuse to assume.”). 2

For the above reasons, the majority should have vacated the court

of appeals ruling, reversed the ruling of the district court denying the

motion to suppress evidence, and ordered the matter remanded to the

district court. Accordingly, I respectfully dissent.

Wiggins, C.J., joins this dissent.

2In King v. State, 818 N.W.2d 1 (Iowa 2012), the majority of this court considered issues not raised by the appellee in an interlocutory appeal. In that case, the parties extensively briefed the issues not raised in the interlocutory appeal before the district court, and the extensive trial court briefing was made part of the appellate record. Additionally, the plaintiffs did not object to consideration of the larger issues as part of the interlocutory appeal, and the issue before the court was interrelated with the issues not briefed on appeal. Id. at 11–12. Here, the appeal is not interlocutory, the briefing before the trial court was conclusory at best, and the opposing party has not consented to the consideration of the unbriefed issues.