IN THE COURT OF APPEALS OF IOWA

No. 18-0483

Filed May 1, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KARI LEE FOGG,

Defendant-Appellant.

________________________________________________________________

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

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

Kari Fogg appeals her conviction of operating while intoxicated. 

AFFIRMED. 

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

Nye, Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.

Considered by Potterfield, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

Kari Fogg appeals her conviction of operating while intoxicated (OWI), first 

offense. She contends the district court erred in denying her motion to suppress 

evidence on the basis of an allegedly unreasonable seizure. She also argues her 

counsel rendered ineffective assistance in failing to object to alleged prosecutorial 

error in the State’s closing argument.

I. Background Facts and Proceedings

Shortly before 10:00 p.m. on Tuesday, October 10, 2017, Officer Michael 

Frazier of the Boone Police Department was on routine patrol when he observed 

a silver Hyundai “driving really slow” at “ten miles per hour” through a residential 

area. Frazier circled the block and observed the vehicle’s movement for another 

three or four minutes. The vehicle then turned north into a narrow alley located 

between the main streets. According to Frazier’s testimony, the alley is not used 

often. The alley is abutted by houses, outbuildings, and driveways. Frazier 

paralleled the vehicle on one of the side streets and then waited for the vehicle to 

exit the alley at the end of the block. After waiting at the end of the block for roughly 

one minute, Frazier noticed the car had stopped in the middle of the alley and 

parked. When asked during the suppression hearing whether he was suspicious 

a crime was being committed, Frazier testified: 

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.

. . . .

I really don’t know. I mean it was just odd that someone would 

be parked right there at that time of night.
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On cross-examination, Frazier conceded he was not under any belief that a crime 

had been committed. He elaborated: 

I thought it was a possibility something was going on or it was 

somebody that was broken down in the alley. I didn’t know.

. . . .

I was suspicious of her driving behavior before and then 

where she was parked at at the time or where she had stopped at.

At trial, Frazier testified there was an increased rate of burglaries in the area over 

the summer months and Fogg’s behavior on the night in question caused him 

concern “that someone was maybe cruising the alleys casing some garages.”

Frazier turned east on the street north of the alley then “turned south into 

the alley and pulled in front of the vehicle to get out to see what was going on.” 

Frazier observed the vehicle was still running, its headlights were illuminated, and 

it was occupied by a woman, later identified as Fogg. Frazier, without activating 

his emergency lights or siren or drawing his sidearm, parked his cruiser twenty to 

thirty feet in front of the Hyundai and approached. Because of the way the vehicles 

were situated, Fogg’s only avenues for leaving would have been to back out of the 

alley or drive around Frazier’s cruiser, the latter of which would have required Fogg 

to drive through yards along the alley. Fogg opened her car door, and Frazier 

questioned Fogg “whether everything was okay” and “what was going on,” upon 

which Fogg advised “she lived in the area and she was checking to see if the alley 

was crooked or something to that effect, that she had to report to the city.” Frazier 

detected a strong odor of alcohol emanating from Fogg’s vehicle. Fogg was 

ultimately arrested and charged with OWI. 

Fogg filed a pretrial motion to suppress arguing she was seized absent 

reasonable suspicion or probable cause in violation of her constitutional rights 
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under the state and federal constitutions. Following a hearing, the district court 

denied the motion, concluding Fogg was not seized in the constitutional sense or, 

alternatively, the seizure was supported by reasonable suspicion. A jury ultimately 

found Fogg guilty as charged. Fogg appealed following the imposition of sentence.

II. Analysis

A. Motion to Suppress

Fogg challenges the district court’s denial of her motion to suppress, 

contending the court erred in concluding her encounter with Frazier did not amount 

to a seizure or, alternatively, if the encounter did amount to a seizure, it was 

supported by reasonable suspicion. “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. Smith, 919 

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

172, 175 (Iowa 2016)). In evaluating the totality of the circumstances, we are 

entitled to consideration of evidence introduced at both the suppression hearing 

and trial. See State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). “Each case must 

be evaluated in light of its unique circumstances.” Coffman, 914 N.W.2d at 244 

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

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

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

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. 

Fogg argues that Frazier’s placement of his police cruiser in the alley 

rendered the encounter a seizure. 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). Fogg concedes this case does not involve a 

“textbook traffic stop” but argues “the circumstances of the encounter still 

demonstrate that [she] was seized for constitutional purposes.” 

“[N]ot all personal intercourse between the police and citizens involve 

seizures.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008); accord State v. 

Lowe, 812 N.W.2d 554, 570 (Iowa 2012). “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.” Wilkes, 756 N.W.2d at 842 

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). In order “to convert an 

encounter between police and citizens into a seizure,” there must be “objective 

indices of police coercion,” which “is not established by ordinary indicia of police 

authority,” such as merely flashing a badge, wearing a uniform, or being visibly 

armed. See id. at 843. Whether a seizure occurred depends on the totality of the 
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circumstances, and 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.” Id. at 

842–843 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “The 

use of sirens, flashing lights or other signals . . . might also constitute a show of 

authority that is a seizure.” State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981). 

None of the foregoing factors are present here; the only allegation of police 

coercion in this case is the placement of Frazier’s patrol car in front of Fogg’s 

vehicle. We agree that the location of the cruiser in relation to the subject vehicle 

is “a factor in determining whether a seizure occurred.” Wilkes, 756 N.W.2d at 

844. However, our supreme court has cited with approval the conclusion of 

another state high court “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.” Id. (emphasis 

added) (citing People v. Cascio, 932 P.2d 1381, 1386–87 (Colo. 1997)). Here, the 

evidence is undisputed that Fogg’s ability to leave was not “wholly” blocked; she 

could have backed out of the alleyway, and the evidence shows she was parked 

next to a driveway abutting the alley, which she could have turned around in; 

additionally, as conceded in her brief on appeal, she could have also driven 

forward, although that avenue would have required her to drive through yards 

along the alley. Cf. id. (“Here, the ability of Wilkes to drive away was not 

substantially impaired. In fact, . . . there were at least two ways for him to turn his 
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truck around and leave the quarry, had he chosen to do so.”); State v. Mathis, No. 

14-0861, 2015 WL1817111, at *2–3 (Iowa Ct. App. Apr. 22, 2015) (finding driver’s 

ability to drive away was not “substantially impaired,” as “[s]he had two means of 

egress. She could have backed out down the alley or she could have driven 

forward past the officers’ vehicles.”). Likewise, this is not a situation in which Fogg 

was in transit and Frazier’s placement of his vehicle in her avenue of egress forced 

her to grind to a halt in the face of police authority; she was already stopped and 

parked in the alley. See, e.g., Harlan, 301 N.W.2d at 720 (noting “[s]topping a car 

in transit is obviously a seizure,” but indicating approaching a stationary vehicle is 

less akin to a seizure); Mathis, 2015 WL1817111, at *3 (“[W]hen an officer does 

not stop a vehicle, but merely walks up to a vehicle that is already stopped, as any 

citizen might do, there has generally not been a seizure.”); State v. Bakula, No. 08-

0629, 2008 WL 500196, at *2 (Iowa Ct. App. Nov. 26, 2008) (finding fact that 

subject vehicle was already stopped when officer initiated encounter militated 

against the existence of a seizure). The circumstances in this case are nearly 

identical to those in another matter in which this court affirmed a denial of a motion 

to suppress, concluding no seizure occurred. See generally Mathis, 2015 

WL1817111, at *1–3.1

 

1

In Mathis, two officers in separate vehicles saw the defendant drive her vehicle into an 

alley. 2015 WL1817111, at *1. Without activating their lights or sirens, both officers drove 

into the alley where the defendant’s vehicle was parked with the motor running. Id. One 

officer parked parallel to the subject vehicle, but facing in the opposite direction, and the 

other officer parked about thirty feet behind the first officer, which would have placed him 

in the defendant’s forward avenue of egress. See id. The evidence showed “Mathis could 

have easily backed out down the alley. She could also have driven forward down the 

alley, although this would have required her to drive on the grass to get around” one of 

the officer’s vehicles. Id. Ultimately, Mathis was charged with driving while barred, and 

she filed a motion to suppress, claiming she was improperly seized. On appeal, we 

affirmed the denial of the motion to suppress, concluding:
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Here, Frazier was the sole officer involved in the initial encounter; he did not 

draw his sidearm; there was no physical touching between him and Fogg; his tone 

with Fogg was casual and non-aggressive; and he did not use sirens, flashing 

lights, or other signals of authority. Although Frazier’s vehicle was situated in front 

of Fogg’s, her ability to drive away was not substantially impaired. Simply stated, 

there were no objective indices of police coercion during this encounter; there was 

no show of authority here, which is a necessary prerequisite for a seizure. See 

California v. Hodari D., 499 U.S. 621, 626–28 (1991). Consequently, upon our de 

novo review of the record and consideration of the totality of the circumstances, 

we agree with the district court that Fogg was not subjected to a seizure in the 

constitutional sense. We therefore affirm the district court’s denial of her motion 

to suppress evidence. 

B. Ineffective Assistance of Counsel

Next, Fogg argues her “trial attorney was ineffective for failing to object to 

the State’s prosecutorial error when the State disparaged defense counsel during 

closing argument.” Ineffective-assistance-of-counsel claims are immune from 

error-preservation defects. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 

2010). We review such claims de novo. State v. Albright, ___ N.W.2d ___, ___, 

 

The officers did not stop Mathis’s vehicle. They did not have their lights 

and sirens on. The evidence showed Mathis’s ability to drive away from 

the officers was not substantially impaired. She had two means of egress.

She could have backed out down the alley or she could have driven forward 

past the officers’ vehicles. There was no evidence the officers engaged in 

a display of force or used language that would have made Mathis believe 

she was compelled to comply with the request for her driver’s license. The 

record in this case does not show there were objective indices of police 

coercion.

Id. at *3. 
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2019 WL 1302384, at *4 (Iowa 2019). Fogg must establish by a preponderance 

of the evidence that (1) her trial counsel failed to perform an essential duty and (2) 

the failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 

(1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider 

either the prejudice prong or breach of duty first, and failure to find either one will 

preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State 

v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)). 

Specifically, Fogg complains of the prosecutor’s statements during closing 

rebuttal argument that “her attorney was intentionally misrepresenting the 

evidence and making disingenuous arguments because that was his role in 

defending a client” and urging “the jury to consider the prosecutor more trustworthy 

and honest because he did not have a client to defend.” Generally, Fogg believes 

the prosecutor improperly accused defense counsel of unethical conduct by trying 

to twist the evidence in his client’s favor. 

However, upon our de novo review of the record, we find no reasonable 

probability of a different outcome had counsel objected to the complained-of 

statements. See Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5 (“For the 

second prong—prejudice—the claimant must prove there is a reasonable 

probability that the outcome of the proceeding would have been different but for 

counsel’s unprofessional errors.”). The jury was specifically instructed it must base 

its verdict only upon the evidence presented and the court’s instructions. The jury 

was also instructed statements, arguments, and comments by the lawyers are not 

evidence. Appellate courts presume juries follow the court’s instructions, State v. 

Sanford, 814 N.W.2d 611, 620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552 
10

(Iowa 2010), and we are thus unconvinced that the complained-of statements had 

any effect on the jury’s verdict. 

Furthermore, we disagree with Fogg that “[t]he case was close.” Although 

Fogg variously testified that she was not impaired on the night in question and 

attempted to explain away the State’s evidence during her testimony, the State 

provided a mountain of evidence to rebuff her assertions. Fogg admitted to alcohol 

consumption, although initially denying the same, and the standard field sobriety 

tests she completed indicated she was impaired.2 She also admitted to consuming 

several medications on the night in question, some of which cause dizziness and 

may impair one’s ability to operate a motor vehicle. Video footage from Frazier’s 

body camera showed Fogg to exhibit slurred speech and an inability to follow 

instructions during attempted field sobriety testing. Video footage of Fogg at the 

jail likewise showed Fogg, throughout the attempted exercise of her rights under 

Iowa Code section 804.20 (2017) and implied-consent-advisory procedures, to 

exhibit slurred speech; be in somewhat of a confused and emotional state; and 

have bloodshot, watery eyes. Frazier testified he continued to smell the odor of 

alcohol coming from Fogg’s person throughout his more than two-hour encounter 

with her. She denied being impaired to Frazier, but refused to submit to both a 

preliminary breath test and chemical testing. The jury was instructed it could 

consider Fogg’s refusal to submit to a breath test in reaching its verdict. Frazier 

testified he had “[n]o doubt” that Fogg was operating a motor vehicle while 

 

2 Fogg was subjected to the horizontal- and vertical-nystagmus tests. She declined to 

perform the walk-and-turn and one-legged-stand tests because she knew she would fail 

those tests. 
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intoxicated. Given the strong evidence of guilt, we find no reasonable probability 

of a different outcome had counsel objected to the complained-of statements. See 

Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5.

We find counsel’s alleged failure did not result in prejudice to Fogg, and 

counsel therefore did not render ineffective assistance. 

III. Conclusion

Having found the district court correctly denied Fogg’s motion to suppress 

and counsel was not ineffective as alleged, we affirm Fogg’s conviction of OWI, 

first offense. 

AFFIRMED.