State of Iowa v. Mark Besaw

• Court: Court of Appeals of Iowa
• Decided: July 22, 2020
• Docket: 19-0948
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0948 Filed July 22, 2020

STATE OF IOWA, Plaintiff-Appellee,

vs.

MARK BESAW, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.

Mark Besaw appeals from a denial of his suppression motion challenging

the constitutionality of the stop of his vehicle. AFFIRMED.

Robert Tiefenthaler, Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.

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

AHLERS, Judge.

Shortly after 1:00 a.m. on Thursday, May 31, 2018, a pickup traveling in the

wrong direction on a one-way street in downtown Sioux City ran a red light and

broadsided a taxicab. The driver of the pickup did not stop and fled the scene of

the collision, continuing to head westbound in the wrong direction on the one-way

street. The taxicab was damaged in the collision. After a 911 call was made

reporting the collision and describing the fleeing pickup, Sioux City police officers

began searching for it.1 Their search was aided by the light amount of traffic on

the streets due to the early morning hours on a workday.

A little over thirty minutes after the collision, an officer encountered a pickup

matching the description of the pickup that caused the collision. The officer turned

around and followed the pickup, which appeared to be driven in such a manner as

to avoid contact with the officer. The officer eventually found the vehicle parked at

the end of a long private driveway a considerable distance from a residence with

the engine running, no lights on, and the driver still in it. The officer activated the

patrol vehicle’s lights to initiate a stop in order to investigate. That investigation

revealed that the driver was Mark Besaw and he was the driver of the pickup

involved in the collision. Further investigation resulted in Besaw being arrested for

and charged with operating while intoxicated (OWI) in violation of Iowa Code

section 321J.2 (2019).

1 Officer testimony and a recording of officer radio traffic described the pickup as “a full-sized truck with South Dakota plates.” It was reported to be traveling westbound. It was also reported the taxicab driver “thinks it was a Chevy” and it “was like a tan, four-door.” 3

Besaw sought to suppress all evidence after the officer initiated the stop by

activating the lights of the patrol car, claiming the officer did not have reasonable

suspicion of criminal activity so as to justify a seizure. The district court denied

Besaw’s suppression motion. The parties stipulated to a trial on the minutes, and

Besaw was found guilty and sentenced. He appeals, seeking to overturn the

conviction on the basis the suppression motion should have been granted.

I. Issues Presented.

Besaw raises three issues: (1) the officer lacked reasonable suspicion for a

stop because the description of the vehicle was too generalized; (2) any

reasonable suspicion the officer may have had dissipated before the stop was

initiated; and (3) a stop is not allowed based on reasonable suspicion of a

completed misdemeanor.

II. Standard of Review.

Due to Besaw raising a constitutional challenge to the seizure of his person

and vehicle, the following standard of review applies:

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. Fogg, 936 N.W.2d 664, 667 (Iowa 2019) (quoting State v. Coffman, 914

N.W.2d 240, 244 (Iowa 2018)).

III. Error Preservation.

Before proceeding to the merits, we must first address an issue of error

preservation raised by the parties. The State asserts Besaw failed to preserve 4

error on his third argument, that a completed misdemeanor cannot serve as a basis

for an investigatory stop, because he did not raise this issue before the district

court. Besaw counters that he raised the issue of the constitutionality of the stop

and the completed misdemeanor component is just an argument on the preserved

issue.

“Issues not raised before the district court, including constitutional issues,

cannot be raised for the first time on appeal.” State v. McCright, 569 N.W.2d 605,

607 (Iowa 1997). “Our error preservation rule serves the salutary purpose of giving

notice to the court and opposing counsel.” Id. at 608. A mere assertion of

unconstitutionality “does not encompass every conceivable constitutional

violation.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002); see also

State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995) (finding an argument raised in

a motion to suppress but not ruled upon by the district court is not preserved on

appeal).

Besaw’s written motion to suppress challenged the constitutionality of the

stop on the grounds of reasonable suspicion only, and the transcript of the

suppression hearing shows the focus was entirely on reasonable suspicion. Not

surprisingly, the court’s suppression order denied Besaw’s motion solely on the

grounds of reasonable suspicion. While Besaw raised the constitutionality of the

stop in his suppression motion, he did not raise, and the court did not rule on, the

question of whether the stop was unconstitutionally premised on a completed

misdemeanor. For that reason, we find the completed-misdemeanor question is

not preserved on appeal, and we do not address it. 5

IV. Discussion.

An officer is permitted to “briefly stop an individual or vehicle for

investigatory purposes when the officer has a reasonable, articulable suspicion

that a criminal act has occurred, is occurring, or is about to occur.” State v. Vance,

790 N.W.2d 775, 780 (Iowa 2010). The purpose of such a stop is “to allow a police

officer to confirm or dispel suspicions of criminal activity through reasonable

questioning.” State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). “Whether

reasonable suspicion exists for an investigatory stop must be determined in light

of the totality of the circumstances confronting a police officer, including all

information available to the officer at the time the decision to stop is made.” Id. at

642. “The evidence justifying the stop need not rise to the level of probable cause.”

Id. “An officer may make an investigatory stop with ‘considerably less than proof

of wrongdoing by a preponderance of the evidence.’” Id. (quoting State v.

Richardson, 501 N.W.2d 495, 496–97 (Iowa 1993)).

Besaw asserts the officer did not have reasonable suspicion to stop his

vehicle because the description of the vehicle available to the officer was too

generalized. We disagree. As previously noted, one of the officers testified “[t]here

was light traffic” on the streets due to the time of day, so officers would be less

likely to meet multiple vehicles matching the description of the fleeing pickup.

Officers were looking for a four-door, full-size Chevy pickup with South Dakota

license plates and a “like a tan” color that left the collision site heading west.

Relatively shortly after the call went out to be on the lookout for the pickup, the 6

arresting officer encountered a tan,2 four-door Chevy pickup on the west side of

Sioux City that appeared to have some damage to the pickup bed. In addition,

before the stop was initiated, the officer confirmed the pickup had South Dakota

license plates.

The details known to the officer in this case distinguish the out-of-state

cases cited by Besaw, namely State v. Easterberg, No. 115,791, 2017 WL 66338

(Kansas Ct. App. Jan. 6, 2017), and Vansant v. State, 443 S.E.2d 474 (Ga. 1994).

Easterberg, like this case, involved an early-morning-hours stop. 2017 WL

66338, at *1. However, unlike this case, the description of the vehicle was limited

to a white pickup with two male occupants that “possibly had been involved” in a

collision. Id. Officers stopped the vehicle two hours after receiving that

description. Id. The Kansas Court of Appeals found those details insufficient to

justify a stop, holding “[h]ours removed from the report, a vehicle type and color

alone are too remote or stale to furnish reasonable suspicion for a traffic stop.” Id.

at *2. Here, the stop occurred a little over thirty minutes following the reported

collision, not two hours later. While thirty minutes is not the height of freshness, it

is sufficiently fresh to distinguish Easterberg and support a stop in this case.

Additionally, unlike Easterberg’s possibility of the vehicle being involved in a

2 The record reveals that the pickup was actually silver in color. However, the officer testified the pickup appeared to be tan in color when viewed under street lights as the officer and Besaw passed each other. It was only upon close inspection of the pickup as the officer approached it to make the stop that it was discovered the vehicle was actually silver in color. Given this plausible explanation of the color discrepancy, on our de novo review, we find the color discrepancy to be an inconsequential issue. The officer saw what looked like a tan vehicle, just as the taxicab driver saw a “like a tan” vehicle. The fact the vehicle turned out technically to be silver upon closer inspection did not negate the reasonableness of the officer’s suspicion. 7

collision, here there was no question the vehicle being sought had been involved

in a collision and the pickup observed by the officer appeared to have recent

damage. Finally, the additional detail of the pickup being a full-size, four-door

pickup with out-of-state plates3 provided additional details justifying a stop.

Vansant also involved a more limited description of a vehicle, consisting

only of a white van involved in a hit-and-run accident in a restaurant parking lot

approximately a mile away. Vansant, 443 S.E.2d at 321. With three dissenters,

the Georgia Supreme Court found a lack of the necessary particularized basis for

stopping the van. Id. We find the additional descriptors available to the officer in

this case (i.e., make, number of doors, apparently fresh damage, and out-of-state

plates) distinguishes this case from Vansant.

In addition to the extra vehicle descriptors distinguishing this case from

Easterberg and Vansant, the totality of the circumstances include additional details

that justified the stop. As the officer turned around to follow Besaw’s pickup to

investigate, the pickup immediately turned off the street on which the vehicles had

been traveling, making it more difficult for the officer to follow. The officer

eventually found the pickup on a dead-end street in a residential area. It was

parked in the long driveway of a residence. Rather than being pulled up to the

house, the pickup had been parked at the bottom of the driveway, just off the street

3 Besaw asserts the accident occurred “on a road that crosses over into South Dakota” and “it would not be unusual to see a vehicle with South Dakota plates” at the location of the accident or the stop in western Sioux City. This information is not in the record. However, even assuming this assertion is correct, the additional detail of the license plates, although not overwhelming, provided some extra support for the reasonable suspicion finding when considering the totality of the circumstances. 8

and a considerable distance from the house, with the lights off while the driver

remained in the vehicle with the engine running.

The officer found these actions suspicious. We agree. Besaw’s actions in

turning off the street immediately after a police officer started following him and

parking in this manner at a residence were consistent with someone who was

trying to avoid contact with the officer. Likewise his manner of parking in the

driveway was consistent with someone who wanted to get off the street to avoid

police while, at the same time, trying to avoid drawing the attention of the

occupants of the house where his presence was not wanted.

It is true that Besaw’s actions were also consistent with someone who was

engaged in perfectly legal activity. It was possible Besaw’s pickup was not the

pickup in question, and we can imagine a myriad of innocent possibilities for why

a driver might turn where the driver did and why a driver might park at the end of

a long driveway with the vehicle’s lights off and the motor running in the early

morning hours of a weekday. However, these possibilities do not negate

reasonable suspicion. Investigatory stops do not require officers to rule out the

possibility of innocent behavior before the stop is conducted. Kreps, 650 N.W.2d

at 643. As stated in Kreps:

[S]uspicious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity. Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.

Id. (quoting State v. Anderson, 454 N.W.2d 763, 765 (Wis. 1990)). Here, with the

pickup matching the description of the vehicle causing the collision and the pickup 9

driver’s suspicious behavior when the officer began to follow it, the officer had

reasonable, articulable suspicion to initiate a stop.

We also reject Besaw’s claim that, even if there was originally reason to

suspect his was the suspect vehicle, the additional information the officer obtained

about where on the pickup damage was incurred negated any reasonable

suspicion the officer may have otherwise had. When the officer first observed the

pickup, he noticed what appeared to be fresh damage to the pickup bed. 4 Before

initiating the stop, the officer received information that the damage was expected

to be on the front, but such damage was “probably pretty minor.” This information

did not negate the officer’s suspicion. This was an investigation in progress, so

the fact that there may have been “pretty minor” front end damage did not preclude

the possibility other parts of the pickup sustained damage in the collision, thus

possibly explaining the damage to the pickup bed observed by the officer.

Likewise, being informed there was “probably pretty minor” damage to the front

was not inconsistent with anything the officer observed. Although he did not notice

front-end damage when the vehicles passed each other before the officer turned

around to follow, minimal damage would most likely not be immediately apparent.

Once the officer found the parked pickup and received the information about the

possibility of front-end damage, the officer was no longer in a position to see the

front of the vehicle. Based on the other information available to him, he had

4 At the hearing, the arresting officer described the damage as a “dent or crease to the side of the box and also a bit of scuff . . . on the rear bumper that had dirt removed from the rear bumper.” Besaw later told the arresting officer the damage to the rear of the pickup “was rather old.” 10

reasonable grounds to conduct a stop and look for front-end damage as part of his

investigation trying to resolve the ambiguity.

V. Conclusion.

The officer had sufficient description of the fleeing pickup to create

reasonable suspicion that Besaw’s pickup was the suspect vehicle, and additional

information about damage to the pickup did not negate reasonable suspicion. The

question of whether the stop was unconstitutionally premised on a completed

misdemeanor is not preserved on appeal, and we do not consider it. Therefore,

we affirm the district court’s denial of Besaw’s motion to suppress.

AFFIRMED.