IN THE COURT OF APPEALS OF IOWA No. 14

- 1234 Filed February 25, 2015

STATE OF IOWA, Plaintiff

- Appellee,

vs. AARON JAMES NELSON , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Shelby County, Mark J. Eveloff , Judge.

A defendant appeals from his conviction for operating while intoxicated, third offense. AFFIRMED.

Colin C. Murphy of Colin Murphy, P.C. , Clear Lake , for appellant. Thomas J. Miller, Attorney General, Heather R. Quick , Assistant Attorney General, and Marcus Gross , County Attorney, for appellee.

Considered by Danilson, C.J., Potterfield, J., and Goodhue, S. J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (201 5 ).2

GOODHUE, S.J. Aaron James Nelson appeals from his conviction for operating while intoxicated , third offense , following a bench trial on the minutes of evidence

. I. Factual Background Shelby County Deputy Sheriff Nathan Pigsley was notified by dispatch that an intoxicated driver was possibly leaving Harlan and headed towards his home. Deputy Pigsley was given Nelson’s name as the driver, his home address, a description of t he vehicle, and the lice nse plate number. Dispatch received the information from a citizen tip. Deputy Pigsley proceeded on the most direct route between Harlan and the residential address he had been given. On the way to the residence , the deputy obser ved a vehicle fitting the description he had been given but did not observe any traffic violations or anything unusual about the operation of t he vehicle. The deputy never turned on his siren or activated his lights. The veh icle pulled into the residen tial driveway at the address the deputy had been given and voluntarily stopped. T he deputy also pulled into the driveway and stopped. The driver of the vehicle turned out to be Nelson , and he had stopped because he was presumably home and clearly not bec ause of any action the deputy had taken. The deputy got out of his car, knocked on the window of the vehicle to initiate a discussion, and when the window was opened the deputy immediately noticed the smell of an alcoholic beverage. The deputy administer ed sobriety tests to Nelson and ultimately charged him with operating while intoxicated.3 Nelson filed a motion to suppress Deputy Pigsley’s observations, the results of any tests administered, and an y incriminating statements he may have made at the tim e of the arrest. Nelson asserted that the deputy had no reasonable suspicion or probable cause to seize him and his vehicle by parking behind it. The motion to suppress was overruled. Nelson waived the right to a trial by jury , and the matter went to tr ial on the stipulated minutes of evidence. Nelson was convicted and sentenced. Nelson has appealed , contending his motion to suppress should have been granted because the evidence obtained by Deputy Pigsley was the result of an unconstitutional seizure.
II. Error Preservation When a pretrial motion to suppress is overruled by the trial court no further objection to its admission at trial is necessary to preserve error. State v. Richards , 229 N.W.2d 229, 232

- 33 (Iowa 1975). Error has been preserved , and
t he State does not contend otherwise.
III. Scope of Review Constitutional issues have been raised ; therefore , our review requires an evaluation of the totality of the circumstances. State v. Pals , 805 N.W.2d 767, 771 (Iowa 2011). T he reviewing court gives d eference to but is not bound by the factual findings of the tr ial court because of its opportunity to evaluate the credibility of the witnesses. Id.
IV. Discussion A law enforcement officer must have a reasonable and articulable belief that criminal activity is afoot before he or she can make a stop consistent with the Fourth Amendment. See State v. Kreps , 650 N.W.2d 636, 641 (Iowa 2002). To4

justify a stop for inve stigating an a lleged drunk driver a tipster must relay more than a bare assertion. State v. Kooima , 833 N.W.2d 202, 210 (Iowa 2013). Factors such as personal observation of erratic driving and other observations that establish the driver is intoxicated o r details not available to the general public are required. Id. However , it is not necessary to analyze the existence of a valid basis for a stop if there has been no stop. See State v. Pickett , 573 N.W.2d 245, 247 (Iowa 1997). Deputy Pigsley did not t urn on his siren , engage his lights, or otherwise direct Nelson to stop. Nelson pulled his vehicle into the driveway on his own accord and stopped the movement of the vehicle. Nelson asserts the re was a seizure when the deputy parked his vehicle in

suc h a manner that he could not leave or alternatively his only way out was restricted. It is not disputed that he could not have driven forward and exited the premises. To leave , Nelson would have had to back up using the driveway on which he had entered a nd on which the deputy’s vehicle was parked. Nelson asserts that those conditions constitute a seizure. Absent coercive o r authoritative behavior , such as a stop , and a driver’s ability to drive away has not been substantially impaired , there is no sei zure. State v. Wilkes , 756 N.W.2d 838, 844 (Iowa 2008). On the other hand, if the driver’s ability to leave is wholly blocked by law enforcement , a seizure may be said to exist. Id. Deputy Pigsley testified that Nelson could have exited by backing st raight back. He testified that his vehicle was parked to the left of Nelson’s. Nelson
test ified he would have had to back around the deputy’s car but admitted it was not directly behind his vehicle. A video of the arrest was admitted into evidence5

and examined by the trial court. The video showe d the driveway and provided evidence of the location of the vehicle. In its ruling the trial court stated that it had reviewed the video and found the testimony of the deputy to be more credible than Nelson’s

. The court determined Nelson could have easily left the property if he desired. There is no basis in the record to challenge the trial court’s finding of fact. There was no stop and no seizure of the vehicle while it was occupied by Nelson. The deputy knocked on the vehicle window and initiated his discussion with Nelson. Discourse initiated by law enforcement without a stop or seizure does not usually require a suspicion of criminal activity. State v. Har

l an , 301 N.W.2d 717, 719

- 20 (Iowa 1981). Ther e was no seizure until Officer Pigsley detected the strong odor of an alcoholic beverage.
AFFIRMED.