State v. StevensState v. Stevens
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We granted the State’s application for discretionary review,
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The Fairbank Chief of Police, Donald Becker, was on patrol in his squad car during the early morning hours of January 9, 1985. At approximately 1:40 a.m., he was flagged down by a woman in a car. He stopped his car, and recognized Vickie Kaufman, a resident of Fairbank. She informed him that while socializing with friends in the Hideaway Tavern she was told a bar patron with long, dark hair had had a gun fall from his black jacket, which had a “Harley Davidson” emblem on its back. She added that this man’s companion was Michael Bishop.
Chief Becker requested assistance over his radiо, then drove near the Hideaway for surveillance. Twenty minutes after their first meeting, Chief Becker again met Kaufman, who had since returned to the Hideaway. She informed him that Bishop and his companion were still there.
At about 2:00 a.m., Chief Becker saw two men leave the Hideaway and walk across the street toward the North Forum, a tavern owned by Bishop. Chief Becker believed them to be Bishop, whom he knew, and the companion described by Kaufman. Shortly thereafter he drove his squad car down an alley next to the North Forum. In the gravel parking lot adjacent to the North Forum tavern, Chief Becker saw a parked car with its engine running. An individual was seated in the front passenger seat.
Chief Becker recognized the defendant as the passenger, who also appeared to be the person described as Bishop’s cоmpanion. Chief Becker went to the car and spoke to the defendant through the driver’s window, which was rolled down. He asked, “Where’s Mike?” The defendant “didn’t give a complete sentence” in reply: “He nevеr stated anything in words. He just mumbled.” Although Chief Becker
At this time Bishop, who had еntered the North Forum to pick up his bank bag, returned to its parking lot. Chief Becker asked him where he had been earlier in the evening, and Bishop replied he and the defendant had been drinking in the Hideaway. Chief Bеcker detected an odor of alcohol on Bishop’s breath and believed he was intoxicated.
Chief Becker told Bishop to “wait here,” then returned to his squad car. Over his radio he said he had an intoxicated person and wanted to know whether or not to arrest him.
After using his radio, Chief Becker asked Bishop to step out of the car. Three officers then arrived at the parking lot. Chief Becker askеd Bishop some more questions about the evening; Bishop replied he and the defendant had consumed six or seven drinks each.
Chief Becker went to see the defendant, who was still in the car. Looking through the рassenger window, he could not tell whether the defendant was “asleep or passed out,” but he was able to get the defendant’s attention. The defendant rolled down the window and asked, “What’s the matter?” Chief Bеcker asked him to get out of the car; when the defendant did, he staggered one or two steps. Chief Becker, who smelled alcohol on the defendant’s breath, supported him for balance. Dexterity tests were explained to the defendant, who replied in slurred speech that he understood them. The defendant, however, lost his balance in performing them.
Chief Becker then arrested the defendant for рublic intoxication.
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Chief Becker went to speak with the officer who was examining Bishop for intoxication. When asked where the gun was located, Bishop replied he was not aware of any gun and consented to a search of his car. A loaded .38 caliber derringer pistol was found under the passenger seat.
The defendant was later charged with possession of a controlled substance,
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The constitutional protections against unreasonable searches are triggered by the seizure of a person. State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981). A sеizure occurs when a police officer, by means of physical force or show of authority, has in some way restrained the person’s liberty. Id. It includes the threatening presence of officers, or the use of language or tone of voice indicating compliance might be compelled. Id. at 719-20. When a motor vehicle is stopped by a police officer, a seizure of all its occupаnts occurs because their freedom of movement is equally affected. State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984).
In this case the defendant was seized when Chief Becker commanded
The Supreme Court has stated its decision in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07 (1968) recognized
that “a poliсe officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily whilе obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972) (citations omitted). To justify an investigatory stop, the officer must have reasonable cause to bеlieve a crime may have occurred. See State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982). The test of reasonable cause for an investigatory stop is not the officer’s subjective theory, but whether “articulable objective facts were available to the officer to justify the stop.” State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976). If the State does not establish such facts, the evidence seized as a result of the stop must be suppressed. State v. Lamp, 322 N.W.2d at 51.
Because Chief Becker saw Bishop and another man leave the Hideaway around 2:00 a.m., he could reasonably believe they had been drinking. Minutes later he saw the defendant, who resembled Bishop’s companion, in Bishop’s car, which was in thе parking lot of another tavern. He was unable to converse with the defendant, who was slumped down in the front seat of the car while its engine was running. His suspicion of the defendant’s intoxication was supportеd by Bishop’s admission that he and the defendant had been drinking in the Hideaway. We conclude that “[bjased upon [the] whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981), Chief Becker thus had reasonable cause to believe the defendant wаs publicly intoxicated.
Chief Becker could then request the defendant to step out of the car.
See
3 W. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment
§ 9.2(d) at 9 (Supp.1986) (“ordering a suspect out of a car ... is a generally permissible tactic in connection with
Terry
stops of vehicles”). He could also request the defendant to perform dexterity tests to determine whether there was probable cause to arrest for intoxication.
2
Cf. Adams,
407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617.
Compare People v. Carlson,
677 P.2d 310, 317 (Colo.1984) (probable cаuse required before ordering driver to perform sobriety tests)
with State v. Superior Court,
149 Ariz. 269, 718 P.2d 171, 175-76 (Ariz.1986) (probable cause not required before requesting driver to perform roadside performance-based sobriety tests; court expressly rеfused to adopt the rule of
Carlson,
677 P.2d at 317);
State v. Wyatt,
687 P.2d 544, 553 (Hawaii 1984) (probable cause not required before ordering driver to perform field sobriety tests);
State v. Little,
468 A.2d 615, 617 (Me.1983) (probable cause not required before requesting driver to perform fiеld sobriety tests);
State v. Purdie,
680 P.2d 576, 578 (Mont.1984)
When the defendant, carrying the odor of alcohol, staggered after getting out of the car, and then failed to pass the dexterity tests, probable cause to arrest for public intoxication clearly arose. As a result, the evidence obtained in the search incident to the defendant’s arrest could be admitted at trial. See United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 441 (1973) (search of person incident to arrest permits search of effects found on person).
We conclude the district court erred in sustaining the defendant’s motion to suppress the cocаine and knife. 3
REVERSED AND REMANDED.
Notes
. A search incident to a valid arrest is an exception to the warrant requirements in
. Public intoxication is a misdemeanor.
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. The defendant did not seek discretionary review of the district court’s order overruling his motion to suppress the gun found in Bishop‘s car. We therefore do not consider his argument in this appeal that the district court erred in not ordering suppression of that evidence.