State of Iowa v. Zachary Jay Ouverson

• Court: Court of Appeals of Iowa
• Decided: May 26, 2021
• Docket: 19-1993
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1993 Filed May 26, 2021

STATE OF IOWA, Plaintiff-Appellee,

vs.

ZACHARY JAY OUVERSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge

Zachary Ouverson appeals the denial of his motion to suppress.

AFFIRMED.

Christine E. Branstad and Nathan A. Olson of Branstad & Olson Law Office,

Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

SCOTT, Senior Judge.

Zachary Ouverson appeals his conviction of possession of a controlled

substance, challenging the denial of his motion to suppress evidence obtained as

a result of an allegedly unconstitutional traffic stop.

I. Background

At approximately 10:25 p.m. on June 24, 2019, Officer Andrew Hofbauer of

the West Des Moines Police Department was on routine patrol when he observed

an SUV make what he believed to be an improper right-hand turn onto Valley West

Drive. Hofbauer’s testimony and his cruiser’s dash-cam footage1 disclose Valley

West Drive is a four-lane road, with two lanes running north and two lanes running

south. The evidence shows the vehicle turned from the adjacent road and pulled

out into the left, northbound lane instead of the right northbound lane. Hofbauer

testified this was an improper turn because it was not “curb to curb.” See Iowa

Code § 321.311(1)(a) (2019). Hofbauer followed the vehicle down Valley West

Drive for roughly twenty seconds, at which point it turned onto a side street.

Hofbauer activated his overhead lights on the side street, and the vehicle pulled

into a driveway.

Hofbauer exited his cruiser, approached the driver side of the vehicle, and

made contact with the vehicle’s occupants, Ouverson (driver) and Stephen Tazzioli

(passenger). Upon his approach, Hoffbauer observed Ouverson light a cigarette.

1 As the State points out, the video exhibit admitted at the suppression hearing only contains footage leading up to the traffic stop but not the subsequent encounter. However, at the hearing, the parties agreed footage of the entire encounter would be submitted to the district court following hearing. Said footage has made its way to us on appeal, so we assume it was provided to the court and is part of our appellate record. 3

Hofbauer testified, based on his training, he thought the occupants might be trying

to mask some other odor in the vehicle. Hofbauer observed Ouverson to exhibit

bloodshot, watery eyes. He also detected a faint smell of marijuana, “mixed with

the odor of a strong cigarette smell”. Hofbauer testified that, at this point, he

determined he would be conducting a marijuana investigation. So he “asked about

marijuana, drinking, things of that nature.” Hofbauer retrieved the occupants’

information and paperwork and returned to his cruiser to run record checks,

pursuant to which he learned Tazzioli was on probation for marijuana possession

and carrying weapons. Based on this information and his observations, Hofbauer

radioed for another unit. Less than three minutes after returning to his cruiser,

Hofbauer can be heard speaking over his radio on the dash-cam footage: “I can

smell marijuana in the car. He lit up a cigarette right away.”2 He also subsequently

noted the bloodshot and watery nature of Ouverson’s eyes. Hofbauer began

preparing a warning for the improper turn. His backup arrived before he completed

and tendered the warning.

Both officers then approached the vehicle and had both occupants step out.

Hofbauer testified he wanted them out of the vehicle to investigate the smell of

marijuana coming from the vehicle or their persons. Tazzioli denied the presence

of marijuana or paraphernalia in the vehicle. Hofbauer then approached Ouverson

to provide him his warning, at which point he observed marijuana shake on

Ouverson’s pants. Hofbauer questioned how much marijuana was in the vehicle,

and Ouverson responded “a small amount.” Hofbauer initiated a search of the

2It appears Hofbauer was either not wearing a body microphone or, if he was, it was inoperable. Some of his speaking can be heard while he is in his cruiser. 4

vehicle and found a marijuana grinder, marijuana in the center console, and more

marijuana contained in a bag also containing Tazzioli’s wallet. Both occupants

were read their Miranda rights, after which both admitted to possessing and

consuming marijuana.

Ouverson was charged by trial information with possession of a controlled

substance. Shortly thereafter, he filed a joinder with the motion to suppress filed

by Tazzioli in a separate criminal case.3 The State filed a resistance, and the

matter proceeded to hearing. Following the presentation of the evidence at the

suppression hearing, Ouverson’s counsel essentially argued the turn Hofbauer

deemed improper was not a violation of Iowa Code section 321.311, so there was

no reasonable basis for the traffic stop. Alternatively, counsel argued Hofbauer

impermissibly prolonged the stop beyond issuing a warning without the requisite

reasonable suspicion.

In its suppression ruling, the court concluded the vehicle’s turn onto Valley

West Drive was a violation of section 321.311 and the stop was therefore justified.

The court found Hofbauer’s detection of a faint smell of marijuana, Ouverson’s

lighting of a cigarette, and Hofbauer’s knowledge that cigarettes are used to mask

other odors provided a reasonable basis for prolonging the encounter. Further,

the court found Hofbauer’s observance of marijuana shake on Ouverson’s pants

provided probable cause to search the vehicle. The court denied the motion to

suppress.

3 Tazzioli’s motion to suppress is not part of our record on appeal. 5

Following a bench trial on the minutes of evidence, Ouverson was found

guilty as charged. He appealed following the imposition of sentence.

II. Standard of Review

“We review the application and interpretation of statutes for errors at law.”

Jones v. Glenwood Golf Corp., 956 N.W.2d 138, 142 (Iowa 2021). “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.” State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019) (quoting State v.

Coffman, 914 N.W.2d 240, 244 (Iowa 2018)). “[W]e independently evaluate the

totality of the circumstances as shown by the entire record.” State v. Smith, 919

N.W.2d 1, 4 (Iowa 2018) (alteration in original) (quoting State v. White, 887 N.W.2d

172, 175 (Iowa 2016)). “Each case must be evaluated in light of its unique

circumstances.” Fogg, 936 N.W.2d at 667 (quoting Coffman, 914 N.W.2d at 244).

We give deference to the district court’s findings of fact, but we are not bound by

them. State v. Storm, 898 N.W.2d 140, 144 (Iowa 2017).

III. Analysis

A. Initial Seizure

“The Fourth Amendment [to] the United States Constitution,” as applied to

the states by the Fourteenth Amendment, “and article I, section 8 of the Iowa

Constitution protect individuals against unreasonable searches and seizures.”

State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001); accord State v. McNeal, 867

N.W.2d 91, 99 (Iowa 2015). Evidence obtained following a violation of these

constitutional protections is generally inadmissible at trial. See Wong Sun v. 6

United States, 371 U.S. 471, 484–85 (1963); Mapp v. Ohio, 367 U.S. 643, 654–55

(1961); Naujoks, 637 N.W.2d at 111.

It is true that stopping an automobile and detaining its occupants

unquestionably amounts to a seizure within the meaning of the state and federal

constitutions. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v.

Coleman, 890 N.W.2d 284, 288 (Iowa 2017); State v. Tyler, 830 N.W.2d 288, 292

(Iowa 2013). But all that is constitutionally required for a traffic stop to be

permissible is that it be reasonable. See U.S. Const. amend. IV; Iowa Const.

art. I, § 8. “Generally, a traffic stop is reasonable when the police have probable

cause or reasonable suspicion to believe that the motorist violated a traffic law.”

State v. Brown, 930 N.W.2d 840, 845 (Iowa 2019). The burden is on the State to

establish probable cause by a preponderance of the evidence. Id. at 855. If a

traffic infraction occurs, however minor, and the officer witnessed it, the State has

met its burden. Id.; State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). “The

existence of probable cause for a traffic stop is evaluated ‘from the standpoint of

an objectively reasonable officer.’” Brown, 930 N.W.2d at 855 (quoting Tyler, 830

N.W.2d at 293–94). And, importantly, “[p]robable cause may exist even if the

officer’s perception of the traffic violation was inaccurate.” Tyler, 830 N.W.2d at

293. “Probable cause exists where the facts and circumstances within [the

officer’s] knowledge and of which [he] had reasonably trustworthy information [are]

sufficient in themselves to warrant a man of reasonable caution in the belief that

an offense has been or is being committed.” State v. Pals, 805 N.W.2d 767, 775

(Iowa 2011) (alterations in original) (internal quotation marks omitted) (quoting

Brinegar v. United States, 338 U.S. 160, 175 (1949)). In determining whether the 7

officer observed a violation of our traffic laws, we will “give considerable deference

to the trial court’s findings regarding the credibility of the witnesses,” but we will not

be “bound by them.” Tague, 676 N.W.2d at 201.

Ouverson argues “the district court erred in construing section 321.311 to

outlaw the turn used by Ouverson” and, by extension, concluding Hofbauer had a

sufficient basis for the traffic stop. Iowa Code section 321.311(1)(a) provides: “The

driver of a vehicle intending to turn at an intersection shall do so as follows:” “[b]oth

the approach for a right turn and right turn shall be made as close as practical to

the right-hand curb or edge of the roadway.” As Ouverson points out, the relevant

language is “as close as practical.” Ouverson claims his “right-hand turn would

have had to be close to the right-hand curb while also ‘suitable’ to allow [him] to

safely turn left directly after navigating the right-hand turn.” His arguments boil

down to one central concept—that his upcoming left-hand turn rendered turning

along the curb impractical. We disagree. Hofbauer testified Ouverson had

sufficient distance to turn next to the curb, legally signal and effectuate a lane

change, and turn left on the upcoming side street. The dash-cam footage confirms

the same. So the upcoming left turn did not render turning next to the curb

impractical. The violation of section 321.311(a)(1) provided probable cause to

initiate a traffic stop.

B. Extension of Seizure

Ouverson argues “the officer completed the purpose of the traffic stop and

issues a warning to [him] prior to instructing the vehicle occupants out of the car

for additional seizure and search.” He contends this violated both the federal and

state constitutions. True, “[a]uthority for the seizure . . . ends when tasks tied to 8

the traffic infraction are—or reasonably should have been—completed.” State v.

Salcedo, 935 N.W.2d 572, 579 (Iowa 2019) (citation omitted) (discussing

Rodriguez v. United States, 575 U.S. 348 (2015) and In re Prop. Seized from

Pardee, 872 N.W.2d 384 (Iowa 2015)). But here, Hofbauer obtained individualized

reasonable suspicion of other criminal activity before prolonging the stop. See id.

at 577–79. Specifically, he observed Ouverson light a cigarette, which his training

and experience told him was an indicator of an effort to mask another smell in the

vehicle, he smelled a faint odor of marijuana underneath the cigarette smell, and

he observed Ouverson to exhibit bloodshot and watery eyes. Hofbauer

immediately decided he would be conducting a marijuana investigation. The

specific and articulable facts, taken together with rational inferences from those

facts, amounted to reasonable suspicion that further investigation was warranted.

See id. at 578. An investigation “may be expanded to satisfy suspicions of criminal

activity unrelated to the traffic infraction.” Id. We conclude the extension of the

stop was reasonable.

IV. Conclusion

Finding no cause for reversal on the issues presented for our review, we

affirm the district court’s denial of Ouverson’s motion to suppress and his

conviction.