IN THE SUPREME COURT OF IOWA 

No. 119 / 07–0824 

Filed October 10, 2008 

STATE OF IOWA, 

 Appellant, 

vs. 

RICHARD S. WILKES, 

Appellee. 

 Appeal from the Iowa District Court for Cass County, Timothy 

O’Grady, Judge. 

State seeks further review of court of appeals decision suppressing 

evidence as a result of a violation of the Fourth Amendment. DECISION 

OF COURT OF APPEALS VACATED; DISTRICT COURT ORDER 

REVERSED; AND CASE REMANDED. 

 Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant 

Attorney General, and Daniel Feistner, County Attorney, for appellant. 

 Leslie G. Peters, Avoca, for appellee. 

 
2 

APPEL, Justice. 

In this case, we consider whether the district court properly 

suppressed the results of sobriety and DataMaster tests obtained from a 

defendant who was parked in a truck when he was approached by 

uniformed police officers just before midnight. The court of appeals 

affirmed the district court’s order of suppression. We now vacate the 

decision of the court of appeals, reverse the order of the district court, 

and remand the matter for further proceedings. 

I. Factual Background and Prior Proceedings. 

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. 

 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 
3 

everything was okay.” Through the opened driver’s window, Wood 

smelled the strong odor of an alcoholic beverage coming from the driver. 

Wood then obtained identification information from both of the 

occupants and determined that the driver of the truck was Richard 

Wilkes. Wood returned to his patrol car to determine whether Wilkes 

had a valid driver’s license and whether there were any outstanding 

warrants. After determining the status of Wilkes’ driver’s license and the 

lack of outstanding warrants, Wood walked back to the truck and 

requested that Wilkes step out of the vehicle. Wilkes complied and 

admitted to having consumed a glass of wine. Wood then administered 

the horizontal gaze nystagmus test, the walk-and-turn test, and the onelegged-stand test. 

Wood concluded based on these field tests that there was a strong 

likelihood that Wilkes’ blood-alcohol level was over the legal limit. 

Thereafter, Wood administered a preliminary breath test, which showed 

that Wilkes was intoxicated. At this point, Wood arrested Wilkes for 

operating a motor vehicle while intoxicated in violation of Iowa Code 

section 321J.2(1) (2005). A DataMaster test was later administered, 

showing Wilkes’ blood alcohol level to be 0.123. 

After Wilkes was charged with driving while intoxicated, he filed a 

motion to suppress, claiming that the stop by Wood amounted to an 

illegal seizure and that the evidence subsequently obtained should be 

excluded at trial. After a hearing, the district court concluded that 

Wilkes had been seized within the meaning of the Fourth Amendment. 

The district court further concluded that the seizure was not justified 

because Wood did not have a reasonable and articulable suspicion of 

criminal activity and because there was no evidence to suggest that 

Wood was conducting a bona fide community caretaking activity. 
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The State filed an application for a stay of proceedings and 

discretionary review, which we granted. The case was transferred to the 

court of appeals, which affirmed the district court. We granted the 

State’s application for further review. 

II. Standard of Review. 

Because the motion to suppress was based on a claim of 

deprivation of the defendant’s constitutional right against unlawful 

seizures, this court’s review is de novo. State v. Breuer, 577 N.W.2d 41, 

44 (Iowa 1998). 

III. Discussion. 

A. Introduction. This case presents two potential issues of 

constitutional law. The first constitutional question is whether Wood 

and the reserve officer in this case “seized” Wilkes under the Fourth 

Amendment prior to reasonably suspecting Wilkes was driving a motor 

vehicle while intoxicated. See, e.g., United States v. Drayton, 536 U.S. 

194, 210, 122 S. Ct. 2105, 2111, 153 L. Ed. 2d 242, 257 (2002). If no 

such seizure occurred, the motion to suppress is without merit. To the 

extent Wilkes was subject to seizure after Wood had reasonable 

suspicion that Wilkes was driving while intoxicated, such evidence is 

admissible. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 

L. Ed. 2d 889, 906 (1968). 

In the event evidence was obtained pursuant to a seizure prior to 

reasonable suspicion that a criminal offense may have been committed, 

the police may have acted properly if the seizure amounted to a 

“community caretaking activity.” Such seizures have been held not to 

violate the Fourth Amendment if the interest in community welfare 

outweighs any invasion of privacy that accompanies the seizure. State v. 

Carlson, 548 N.W.2d 138, 142 (Iowa 1996). If, however, the conduct of 
5 

Wood and the reserve officer amounted to a seizure and their actions do 

not amount to a valid community welfare check, a violation of the Fourth 

Amendment is present and the evidence obtained pursuant to the 

unlawful conduct must be suppressed. State v. Crawford, 659 N.W.2d 

537, 541 (Iowa 2003). 

Wilkes also seeks to exclude evidence on nonconstitutional 

grounds. He asserts that because the field sobriety tests were improperly 

administered, implied consent was improperly invoked for want of 

probable cause. On appeal, he also asserts that the results of the 

DataMaster test should be suppressed because he had chewing tobacco 

in his mouth when the test was administered. 

B. Constitutional Issues. The Fourth Amendment to the United 

States Constitution provides that “[t]he right of the people to be secure in 

their persons . . . against unreasonable searches and seizures, shall not 

be violated, and no Warrants shall issue, but upon probable cause. . . .” 

U.S. Const. amend. IV. “The Fourth Amendment, which is made 

applicable to the states through the Fourteenth Amendment, gives 

citizens broad protection against warrantless searches and seizures.” 

Crawford, 659 N.W.2d at 541. The purpose of the Fourth Amendment is 

to protect “the privacy and security of individuals against arbitrary 

intrusion by government officials.” State v. Brecunier, 564 N.W.2d 365, 

367 (Iowa 1997).1

 1Article I, section 8 of the Iowa Constitution also contains a right to be free from 

unreasonable searches and seizures. Iowa Const. art. I, § 8. We zealously guard our 

ability to interpret the Iowa Constitution differently from authoritative interpretations of 

the United States Constitution by the United States Supreme Court. In re Detention of 

Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). On appeal, however, Wilkes makes no 

argument that the Iowa Constitution should be interpreted differently than the United 

States Constitution. Therefore, consistent with our prior cases, we for prudential 

reasons assume for the purposes of this appeal that the United States Constitution and 

the Iowa Constitution should be interpreted in an identical fashion. Id.
6 

In order for the Fourth Amendment to apply in this case, there 

must first be a “seizure.” The United States Supreme Court has not 

offered a comprehensive definition of the term. The Supreme Court, 

however, emphasized almost forty years ago that not all personal 

intercourse between the police and citizens involve seizures. Terry, 392 

U.S. at 20 n.16, 88 S. Ct. at 1879 n.16, 20 L. Ed. 2d at 905 n.16. 

According to the Supreme Court, “Only when the officer, by means of 

physical force or show of authority, has in some way restrained the 

liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. 

Whether a “seizure” occurred is determined by the totality of the 

circumstances. Drayton, 536 U.S. at 207, 122 S. Ct. at 2113, 153 

L. Ed. 2d at 255. Factors that might suggest a seizure include 

the threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the person 

of the citizen, or the use of language or tone of voice 

indicating that compliance with the officer’s request might be 

compelled. 

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

64 L. Ed. 2d 497, 509 (1980). In contrast, “otherwise inoffensive contact 

between a member of the public and the police cannot, as a matter of 

law, amount to a seizure of that person.” Id. at 555, 100 S. Ct. at 1877, 

64 L. Ed. 2d at 509–10. 

The Supreme Court has on occasion stated that a seizure does not 

occur if “a reasonable person would feel free ‘to disregard the police and 

go about his business. . . .’ ” Florida v. Bostick, 501 U.S. 429, 434, 111 

S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991) (quoting California v. 

Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690, 

698 (1991)). Nonetheless, the Supreme Court has recognized that many 

persons respond to police requests even if they are free to leave. The fact 
7 

that a citizen chooses to respond, however, does not convert an 

encounter into a seizure. According to the Supreme Court, “While most 

citizens will respond to a police request, the fact that people do so, and 

do so without being told they are free not to respond, hardly eliminates 

the consensual nature of the response.” INS v. Delgado, 466 U.S. 210, 

216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984). It thus 

appears that objective indices of police coercion must be present to 

convert an encounter between police and citizens into a seizure. State v. 

Reinders, 690 N.W.2d 78, 82 (Iowa 2004). 

The element of coercion is not established by ordinary indicia of 

police authority. The mere showing of a badge by a police officer does 

not create a seizure. Florida v. Rodriguez, 469 U.S. 1, 5–6, 105 S. Ct. 

308, 311, 83 L. Ed. 2d 165, 170–71 (1984) (per curiam) (holding no 

seizure where officer approaches defendant in airport, shows him badge, 

and asks questions); Delgado, 466 U.S. at 212, 104 S. Ct. at 1760, 80 

L. Ed. 2d at 252–53 (finding that immigration agents wearing badges and 

questioning workers did not constitute a seizure). The fact that an officer 

is in uniform or visibly armed “should have little weight in the analysis.” 

Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at 254. 

This court has applied the teachings of the Supreme Court’s 

seizure cases to situations where police officers approach parked 

vehicles. State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981). Other state 

and federal courts have taken a similar approach. See United States v. 

Packer, 15 F.3d 654, 657 (7th Cir. 1994); United States v. Pavelski, 789 

F.2d 485, 488–89 (7th Cir. 1986); Riley v. State, 892 A.2d 370, 374 (Del. 

2006). 

In Harlan, we considered whether a seizure occurred for Fourth 

Amendment purposes when a police officer discovered signs of 
8 

intoxication after he approached the driver of a parked vehicle in the 

early morning hours. Harlan, 301 N.W.2d at 720. The police officer 

followed the vehicle for several blocks along “a circuitous route.” Id. at 

719. The officer did not have reason to suspect that criminal activity was 

afoot. Id. Eventually, the driver returned to the street outside the house 

where the officer had first observed him and parked the vehicle leaving 

the engine running. Id. The officer pulled over and approached the 

driver. Id. When the officer shined his flashlight into the vehicle, he 

observed that the driver’s eyes were watery and bloodshot. Id. The 

officer also smelled alcohol coming from the driver’s person. Id. The 

officer subsequently requested his driver’s license, asked him to perform 

field sobriety tests, and arrested him for operating a motor vehicle while 

intoxicated. Id. 

We determined under the facts in Harlan that no seizure occurred 

prior to the point at which the police officer had reasonable suspicion to 

believe that Harlan was driving his vehicle while intoxicated. Id. at 720. 

Citing Terry and Mendenhall, we emphasized that the facts showed there 

was no threat of physical force, no use of language, no use of sirens, and 

no forced stop. Id. We noted that the officer, like any other citizen, had 

a right to look into the car. Id. As a result, no seizure occurred when the 

officer merely approached Harlan’s parked vehicle. Id. 

We find that this case is similar in many respects to Harlan. While 

the court of appeals emphasized that Wood was in uniform and shined 

headlights on the truck, these facts are not dispositive on the seizure 

issue. While the fact that Wood was in uniform is not entirely irrelevant, 

the United States Supreme Court has downplayed the significance of a 

police uniform as a factor in determining whether an encounter is a 

seizure. Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at 
9 

254. Further, the use of ordinary headlights at night is simply not 

coercive in the same manner as the activation of emergency lights which 

invoke police authority and imply a police command to stop and remain. 

See State v. Calhoun, 792 P.2d 1223, 1225 (Or. Ct. App. 1990) (noting 

that the use of headlights and spotlight did not transform the encounter 

into a seizure). 

While it is true that in this case two officers were involved in the 

encounter, the reserve officer remained behind the vehicle and did not 

use physical force or show authority in any manner. The involvement of 

two officers in this fashion was certainly less threatening than in 

Delgado, a case in which the Supreme Court held that no seizure 

occurred where immigration officers stood at the exits of a building while 

colleagues questioned employees. Delgado, 466 U.S. at 218, 104 S. Ct. 

at 1763–64, 80 L. Ed. 2d at 256. 

The fact that Wood parked behind the vehicle driven by Wilkes also 

does not convert the encounter into a seizure. A number of the cases 

involving encounters between police officers and citizens in parked 

vehicles have considered the location of the patrol car(s) in relation to the 

parked vehicle as a factor in determining whether a seizure occurred 

under the Fourth Amendment. For example, in People v. Cascio, 932 

P.2d 1381, 1386–87 (Colo. 1997), the court concluded that if the police 

car wholly blocks the defendant’s ability to leave, then an encounter 

cannot be considered consensual, but where egress was only slightly 

restricted, with approximately ten to twenty feet between the two 

vehicles, the positioning of the vehicles does not create a detention. 

Here, the ability of Wilkes to drive away was not substantially 

impaired. In fact, Wilkes testified at the suppression hearing that there 
10 

were at least two ways for him to turn his truck around and leave the 

quarry, had he chosen to do so. 

We conclude under all the facts and circumstances that no seizure 

occurred under the Fourth Amendment when Wood approached the 

vehicle. Simply put, neither of the officers displayed coercive or 

authoritative behavior to transform this encounter into a seizure for 

Fourth Amendment purposes. Prior to smelling alcohol on Wilkes’ 

person, the stop was consensual. Once Wood smelled the alcohol, he 

had a reasonable and articulable suspicion of criminal activity to detain 

Wilkes and administer sobriety tests. See Mark A. Bross, The Impact of 

Ornelas v. United States on the Appellate Standard of Review for Seizure 

Under the Fourth Amendment, 9 U. Pa. J. Const. L. 871, 881 (2007) 

(noting that a voluntary encounter may turn into seizure supported by 

reasonable suspicion or probable cause). As a result of our 

determination that a seizure did not occur until after Wood had a 

reasonable suspicion sufficient to restrain Wilkes, it is not necessary to 

consider whether the encounter was within the “community caretaking” 

exception to the Fourth Amendment. 

C. Nonconstitutional Challenges. In the alternative, Wilkes on 

appeal challenges the veracity of DataMaster results on the ground that 

his use of chewing tobacco may have affected the result. This assertion, 

however, was not raised in the district court and is thus not preserved on 

appeal. State v. Boer, 224 N.W.2d 217, 221 (Iowa 1974). 

Wilkes also claims the State lacked probable cause to invoke 

implied consent pursuant to Iowa Code section 321J.6. To support his 

argument, Wilkes argues that Wood improperly administered the walkand-turn and one-legged-stand tests. Even if true, any irregularity with 

respect to the walk-and-turn and one-legged-stand tests has no legal 
11 

significance. Wood smelled the strong odor of alcohol on Wilkes’ breath, 

obtained a concession that he had been drinking, and performed the 

horizontal gaze nystagmus test. Based on this information, Wood had an 

articulable suspicion to administer a preliminary breath test (PBT) 

pursuant to Iowa Code section 321J.5(1)(a). The results of the PBT 

constituted probable cause to invoke implied consent. Iowa Code

§ 321J.6(1)(d); State v. Horton, 625 N.W.2d 362, 364 (Iowa 2001). 

IV. Conclusion.

For the above reasons, the opinion of the court of appeals is 

vacated, the order of the district court suppressing the evidence is 

reversed, and the case remanded to the district court for further 

proceedings. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT ORDER REVERSED; CASE REMANDED. 

All justices concur except Baker, J., who takes no part.