IN THE COURT OF APPEALS OF IOWA No. 17

- 1189 Filed October 24, 2018

STATE OF IOWA, Plaintiff

- Appellee,

vs. LOWELL ALLAN EWALT , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Buchanan County, Kellya nn M. Lekar , Judge.

The defendant challenges the district court’s denial of his motion to
suppress. AFFIRMED.

Thomas P. Frerichs of Frerichs Law Office, P

. C

. , Waterloo , for appellant. Thomas J. Miller, Attorney General, and Linda J. Hines , Assistant Attorney General, for appellee.

Considered by Potterfield, P.J. , Bower, J., and Blane, S.J. * *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).2

BLANE , Senior Judge

. Lowell Ewalt appeals from his conviction for possession of a controlled substance (marijuana). He challenges the district court’s denial of his motion to suppress evidence obtain ed after the initiation of a routine traffic stop for speeding. Ewalt maintains the officer unconstitutionally extended the duration of the stop; he also argues he should have been told his Miranda rights 1 before the officer asked him questions pertaining to his use of marijuana. I. Background Facts and Procedures. On August 15, 2015, Trooper Jim Smith initiated a stop of a vehicle traveling nine miles per hour more than the posted speed limit. When the officer reached the driver’s side window to speak t o the driver

— who he later learned was Ewalt

— he noted that Ewalt was holding a freshly lit cigarette. According to his testimony,
i n the officer’s experienc e, drivers sometimes light cigarettes once a stop has been initiated in order to mask the odor of alcohol or marijuana. Additionally, the officer later testified that when he reached the window, Ewalt’s eyes w ere watery and bloodshot and Ewalt’s hand shook when he reached for the registration. The officer noted that the vehicle was registered under a woman’s name. W hile the car had Iowa license plates, Ewalt’s driver ’s license had been issued by the state of Missouri. Ewalt told the officer that he was just leaving “our golf course,” referencing the local course. The officer testified Ewalt avoided making eye contact with him while they spoke. According to the officer’s testimony, based on all of the foregoing, he was then concerned both that Ewalt was driving while under

1 Miranda v. Arizona , 384 U.S. 436, 4 44

– 45 (1966)

.3

the influence and that there was an issue with Ewalt driving the vehicle

— the officer questioned whether Ewalt was able to obtain an Iowa driver’s license and wondered if he may be barred from driving in the state

. The officer asked Ewalt to come sit with him in his squad car; he told him he would need to sign something on the computer that was in the front seat of the squad car . Ewalt walked himself to the front, passenger seat of the squad car and got in. He was not unde r restraints, and the passenger

- side door was not locked. Duri ng this time, Ewalt’s passenger remained seated in the car Ewalt was driving. While Trooper Smith and Ewalt sat in the front seat of the squad car , the officer asked Ewalt if he had a criminal record. Ewalt responded that he had a marijuana conviction a couple years before and another one five years before that. The officer then asked Ewalt when he had last smoked marijuana; Ewalt reported it had been about one week

. Trooper Smith expressed that his job was to ensure that Ewalt was not driving while u nder the influence; the officer then began asking Ewalt questions about his tolerance, including his age, how many years he h ad been smoking marijuana, how much marijuana he smokes at a time, and how often he smokes
it . Ewalt answered the questions and in formed the officer that he smokes marijuana to self

- medicate for pain. Trooper Smith then began administering some field sobriety tests. Ewalt showed two clues in the horizontal gaze nystagmus test. Additionally, the officer checked Ewalt’s tongue and noted some heat bumps, which the officer later4

testified is associated with smoking marijuana. 2 The officer indicated he had some reason to believe Ewalt may be under the influence and then asked Ewalt again when he had last smoked marijuana; Ewalt chang ed his answer, stating he had smoked marijuana the night before last. Trooper Smith asked Ewalt if the re were drugs in the car, and Ewalt responded, “I don’t think so.” The officer pressed him, indicating he would view Ewalt’s previous statements with le ss credibility if he learned there were drugs in the car when he spoke with the passenger. Ewalt then changed his answer, stating, “There might be some in there. We had a little canister.” When asked where it would be located, Ewalt responded, “If it’s in the car, I would say probably in one of our bags.” Ewalt agreed that if there were drugs in the car, they were his and not the passenger’s. Additionally, Ewalt agreed that if there were drugs in the car, the passenger would probably know where they we re located. The officer then left Ewalt in the squad car while he spoke with the passenger. Based on the video from the officer’s squad car, which was admitted into evidence, the officer began speaking with the passenger, who then opened the trunk of the vehicle from inside the passenger compartment. She exited the vehicle, got her purse out from the trunk, and then handed the officer her identification. Trooper Smith told the passenger Ewalt had admitted there were drugs in the vehicle and then asked h er where they were located. She told him it

2 Specifically, Trooper Smith testified, “His tongue had raised heat bumps which can be a sigh of m ar i juana use because marijuan a burns hotter than cigarettes with filters.”5

was in her bag in the car but the drugs belonged to Ewalt. The officer then retrieved the marijuana 3 from the bag. Trooper Smith conducted a couple more field sobriety tests with Ewalt before ultimatel y placing him under arrest for p ossession of marijuana. Ewalt was not charged with driving under the influence. Then, on August 21, Officer Smith filed a second criminal complaint, alleging interference with official acts . The second complaint was also based on the August 15 stop of Ewalt. The next day, when Trooper Smith reviewed the video from his squad car while writing his report, he noted that while he was out speaking with the passenger, the video had captured Ewalt, who was then sitting in the fr ont seat of the squad car, reaching into the pocket of his pants, retrieving

a m ar i juana pipe, and placing it under the passenger seat in the squad car. After viewing video, t he troop er checked his squad car and located the pipe. Ewalt was charged by t rial information with possession of marijuana, in case number AGCR080387. In case number AGCR080405, he was charged by trial information with interference with official acts. At the State’s unresisted motion, the two cases were later consolidated. Ewalt filed multiple motions to suppress. The hearing on the motions took place in August 2016. Following the hearing, the court issued a ruling denying the motion. 4 The court ruled that the extension of the duration of the stop was not unreasonable, as

3 Later testing of the substance confirmed it was 1.25 grams of marijuana. 4 There was some confusion surrounding the consolidation of the two cases. Ewalt filed three motions to suppress betwee n the two cases

— bot h before and after the consolidation. At the time of the hearing on the motion to suppress

— approximately one6

Thi s was a speeding violation stop turned into an operating under the influence investigation almost immediately from the initial moments of the stop due to [Ewalt’s] appearance and actions. This court does not find that the officer developed a reasonable suspicion of other criminal activity only by prolonging the initial stop concerning the speeding violation. The court finds t hat up on seeing the bloodshot and watery eyes of [Ewalt], along with the shaking hands and recently

- lit cigarette, taken in conjun ction with the inconsistent driver’s license and vehicle registration, it was reasonable for an investigative detention to grow out of the traffic stop with regard to possible operating while under the influence. Additionally, as to the question of whether the officer should have advised Ewalt of his Miranda rights before asking him questions regarding his use of marijuana while Ewalt sat in the front seat of the offic er’s squad car, the court ruled the officer

was not required to advise Ewalt of his Miranda rights because he was not in custody while in the squad car. Ewalt waive d his right to a trial by jury; the charges came before the court for a trial on the minutes of evidence. The court found Ewalt guilty of possession of marijuana but acquitted him of interference with official acts. Ewalt appeals. II. Standard of Review. We review the district court’s denial of Ewalt’s motion to suppress based on the deprivation of a consti tutional right de novo. See In re Pardee , 872 N.W.2d 384, 390 (Iowa 2015). Reviewing de novo requires us to make an independent evaluation of the totality of the circumstances as shown by the entire record. Id.

year later

— the court announced it was hearing the motion in connection with the possession case. No one contradicted the court. Accordingly, t he court’s initial ruling dealt with only the issues raised in the one motion to suppress filed in connection with that case number. Ewalt then filed a motion to amend or enlarge, advising the court of the other motions to suppress in the other case. In Ja nuary 2017, the court issued a second ruling, granting the motion to expand or enlarge and ruling on the rest of the issues.7

We are bound by neither the district cour t’s finding of facts nor its conclusions of law. In re Petition of Chapman , 890 N.W.2d 853, 856 (Iowa 2017). III. Discussion. A. Duration of Stop. Ewalt challenges the duration of the stop; he maintains the “nearly thirty

minute extension” was not jus tified b y additional criminal activity. “A seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez v. United States , 135 S.Ct. 1609, 1614 (2015). “Like a Terry stop , [ 5 ] the tolerable duration of police inquiries i n the traffic

- stop context is determined by the seizure’s ‘mission’

— to address the traffic violation that warranted the stop and to attend to related safety concerns.” Id. (citation omitted). “Authority for the seizure thus ends when tasks tied to the tr affic infraction are

— or reasonably should have been

— completed. ” Id. “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries to [the traffic] stop’” such as “checking the driver’s license, determining whet her there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. at 1615 (quoting Illinois v. Caballes , 543 U.S. 405, 408 (2005)). If, while completing the normal tasks of the “ordinary tr affic stop,” an officer develops a reasonable suspicion of criminal activity apart from the traffic violation, the officer may extend the traffic stop. See id. at 1616 (leaving open the question of whether there was reasonable suspicion of criminal activity to justify detaining

5 Terry v. Ohio , 392 U.S. 1 (1968).8

the defe ndant beyond completi on of the traffic

- infraction investigation); Pardee , 872 N.W.2d at 392 (recognizing that adding even a short time to the underlying stop is “unconstitutional unless the government had reasonable suspicion of criminal activity apart from the traffic violation”). Here, Ewalt maintains that, considering the totality of the circumstances, there was not enough evi dence for the officer to have a reasonable suspicion of criminal activity when he asked Ewalt to step out of the car and switched the purpose of his investigation. To begin, we note that while the officer switched his investigation to whether Ewalt was dr iving while under the influence and if he was legally allowed to operate a motor vehicle in Iowa, it is not dispositive that Ewalt was not ultimately charged with either of these crimes . “The purpose of an investigatory stop is to allow a police officer t o confirm or dispel suspicions of criminal activity through reasonable questioning.” State v. Kreps , 650 N.W.2d 636, 641 (Iowa 2002). “‘[R]easonable cause may exist to investigate conduct which is subject to a legitimate explanation and turns out to be w holly lawful.’” Id. at 642 (citation omitted). The question before us is whether reasonable suspicion existed to extend the stop in light of the totality of the circumstances known to the officer at the time he decided to do so. Id. Reasonable suspicio n requires “‘cons iderably less than proof of wrongdoing by a preponderance of the evidence.’” Id. At the time the officer asked Ewalt to step back to his squad car, the officer was aware of Ewalt’s bloodshot, watery eyes; Ewalt’s hand shook when he reach ed for the registration

— which was not in his name; Ewalt did not have an Iowa driver’s license though the car he drove was registered in Iowa; he had recently lit a cigarette

— possibly to9

ma sk the smell of alcohol or marijuana; and he avoided making eye con tact with the officer. The totality of the circumstances convinces us that “‘the possibility of criminal conduct was strong enough that, upon an objective appraisal of the situation, we would be critical of the officer[] had [he] let the event pass withou t investigation.’” Id. (citation omitted). Because the extension of the duration of the stop was supported by reasonable suspicion, it did not violate Ewalt’s constitutional rights.
B. Miranda Rights. Ewalt maintains the officer should have advise d him of his Miranda rights before asking him questions regarding his use of marijuana while he sat in th e patrol car.

“ Miranda warnings are only required if, at the time of police questioning, the suspect is both: 1) in custody, and 2) subject to interro gation.” State v. Tyler , 867 N.W.2d 136, 171 (Iowa 2015). “Any statements made by a suspect in response to custodial interrogation are inadmissible unless there has been an adequate recitation of the Miranda warning and a valid waiver by the suspect of his or her rights.” State v. Palmer , 791 N.W.2d 840, 844

– 45 (Iowa 2010). “For purposes of the Fifth Amendment, a suspect is in custody as soon as a suspect’s freedom of action is curtailed to a degree associa ted with form al arrest.” Tyler

, 867 N.W.2d at 171 (altered for readability) (quoting Berkemer v. McCarty , 468 U.S. 420, 440 (1984)). We consider four facto rs in making this determination, “(1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant is10

confronted with evidence of her guilt; and (4) whether the defendant is free to leave the place of questioning.” Id. at 172 (citation omitted). We begin with the legal principl e that “the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Miranda custody.” State v. Pals , 805 N.W.2d 767, 788 (Iowa 2011) (quoting Maryland v. Shatzer

, 599 U.S. 98, 113 (2010)). Thus, t he q uestion is whether Ewalt accompanying the trooper back to his patrol car was enough to make the encounter custodial in nature. Here, Trooper Smith asked Ewalt to come back to his patrol car so Ewalt could sign something

— presumably a citation for speeding

— on the computer in the officer’s patrol car. The trooper testified he usually asks drivers to do this because “[ i ] t is safer for [him] to be back in [his] car.” He cited both the danger of being unable to see a driver’s hands as he approached and walked away from their vehicle and the danger from traffic on the highway whil e standing at a driver’s car

. Ewalt agreed to get in the patrol car, and he placed himself in the front, passenger seat. While he sat there, the doors of the patrol car remained unlocked. Based on the totality of the circumstances, the reasonable person in Ewalt’s position would not have believed he was in police custody. In reaching this conclusion, we are persuaded by other cases in which we considered a similar factual situation and reached the same result. See State v. Page , 16

- 1404, 2017 WL 4049495, at *2 (Iowa Ct. App. Sept. 13, 2017); State v. Plager , No. 03

- 0619, 2004 WL 144122, at *2

– 3 (Iowa Ct. App. Jan. 28, 2004). Because Ewalt was not in custody when he made incriminating statements to Trooper Smith, the Miranda requirements had not been triggered, and Ewalt’s constitutional rights were not violated.11

IV. Conclusion. Because the extension of the duration of the stop was supported by reasonable suspi cion and because Ewalt was not in custody

— and Miranda requirements had not been triggered

— when he made incriminating statements to Trooper Smith, Ewalt’s constitutional rights were not violated. The district court properly denied Ewalt’s motion to suppres s. AFFIRMED.