State of Iowa v. Joshua William Simmons

IN THE COURT OF APPEALS OF IOWA

No. 21-1344
Filed August 3, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JOSHUA WILLIAM SIMMONS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Iowa County, Mitchell E. Turner,

Judge.

A defendant appeals his criminal conviction, challenging the denial of his

motion to suppress. AFFIRMED.

Alexander S. Momany of Howes Law Firm, PC, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Badding, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

BADDING, Judge.

Joshua Simmons appeals his conviction for second-offense operating while

under the influence, challenging the denial of his motion to suppress evidence

obtained as a result of a traffic stop that was not recorded by a dash camera.

Relying on that lack of video evidence, Simmons claims that because the officer

who stopped him was not credible, the court erred in finding probable cause or

reasonable suspicion supported the traffic stop. We disagree and affirm the denial

of Simmons’s motion to suppress.

I. Background Facts and Proceedings

On July 5, 2020 at 12:35 a.m., Reserve Deputy Evan Welsh of the Iowa

County Sheriff’s Office was sitting at a stop sign in his patrol vehicle on M Avenue

where it intersects with Highway 6. Welsh was facing north, had his headlights on,

and was the only car at the stop sign. He “might have been parked there for a little

while” because he was on the phone with another deputy. While sitting at the stop

sign, Welsh saw a white Chevrolet Silverado, later found to be driven by Joshua

Simmons, approach from the east on Highway 6 and make a left-hand turn onto

M Avenue southbound. According to his testimony, Welsh

observed the vehicle was traveling westbound and it made a very
wide turn. It didn’t stay on the paved portion of the roadway, and it
traveled onto the gravel portion of the roadway, I suppose. And then
as it came back onto the roadway, it crossed over the yellow
centerline, and then it moved back into its lane.

Welsh turned his cruiser around and followed Simmons “to observe [his]

driving patterns . . . to see if [he] continued to show patterns of inability to maintain

his lane.” Welsh followed Simmons for “less than a couple of minutes,” which

covered “probably about a mile and a half or so.” He saw “the vehicle cross over
3

the centerline again a number of times, and then [he] viewed the vehicle . . . drop

off onto the shoulder a number of times as well.” Welsh could not recall exactly

how many times the vehicle crossed the centerline or went off the shoulder after

he began following it, but he testified it was “more than two times” each.

Welsh’s cruiser was not equipped with a dash camera, but he was wearing

a body camera. He activated that camera sometime after he turned around to

follow Simmons, though it did not capture any of Simmons’s vehicle’s movements.

Roughly fifty-five seconds into the video, Welsh can be heard saying: “Crossed

center line and went on the shoulder several times.” About ten seconds later,

Welsh opened and closed his computer to launch a program for the traffic stop,

activated his overhead lights, began radioing dispatch, and initiated the stop.

Shortly after Welsh activated his overhead lights, Simmons pulled into the

driveway of his residence.

As a result of the traffic stop, Simmons was charged with operating while

under the influence. Simmons moved to suppress the evidence obtained from the

stop, arguing Welsh “lacked probable cause or reasonable suspicion to stop [him]

in violation of his constitutional rights.” In a post-hearing brief, Simmons argued

Welsh’s testimony that he saw Simmons leave the paved portion of the road as he

turned onto M Avenue was not credible, nor were his remaining observations

because of Welsh’s inability to recall specific details during his testimony, like how

close he was following Simmons, how many times Simmons crossed the centerline

or fog line, and geographic locations where the alleged line crossings occurred.

Simmons also argued “Welsh was distracted as he was following” his vehicle.

In its suppression ruling, the district court found:
4

Welsh testified credibly and without rebuttal that he personally
observed [Simmons’s] motor vehicle cross the centerline on at least
two occasions and go onto the shoulder of the road on at least two
occasions during the short distance that he followed the vehicle after
he first observed it making a wide turn which included a portion of
the vehicle being on the shoulder. While he candidly admitted that
he was actually speaking with another deputy sheriff on his
telephone at the time that he was making many of these
observations, the court does not find that these distractions were
sufficient to discredit his testimony to the extent that he did not have
reasonable suspicion to conduct a traffic stop. Indeed, crossing the
centerline, in the absence of an obstruction making it necessary to
drive to the left of the centerline of the roadway, is a traffic violation.
See [Iowa Code § 321.297(1)(b) (2020)]. Furthermore, . . . Welsh’s
audio commentary picked up by his body cam documents that he did
state, contemporaneously following the defendant, that the
defendant was “all over the road.”[1] Viewing the evidence in its
totality, the court finds that the State has established by a
preponderance of the evidence that . . . Welsh had reasonable
suspicion/probable cause to pull over the defendant’s motor
vehicle . . . .

The court accordingly denied Simmons’s motion to suppress. The matter

proceeded to a bench trial on the stipulated minutes of evidence, following which

the court found Simmons guilty as charged.

II. Standard of Review

Appellate review of the denial of a motion to suppress asserting a violation

of a constitutional right is de novo. State v. Hunt, 974 N.W.2d 493, 496 (Iowa

2022). “We review the entire record to independently evaluate the totality of the

circumstances and examine each case ‘in light of its unique circumstances.’” State

v. Hauge, 973 N.W.2d 453, 458 (Iowa 2022) (quoting State v. Brown, 930 N.W.2d

840, 844 (Iowa 2019)).

1 This statement did not occur until after Welsh stopped Simmons and explained:
“The reason I stopped you is you’re all over the roadway.
5

III. Analysis

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

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

Constitution protect individuals against unreasonable searches and seizures.”2

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); Naujoks, 637 N.W.2d at 111.

It is true that stopping an automobile and detaining its occupant amounts to

a seizure under 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). But

all that is constitutionally required for a traffic stop to be permissible is that it be

reasonable. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. “Generally, a

traffic stop is reasonable when the police have probable cause or reasonable

suspicion to believe that the motorist violated a traffic law.” Brown, 930 N.W.2d at

845. Though Simmons challenges the stop on both grounds, we focus on whether

the deputy had reasonable suspicion for the stop. See State v. McIver, 858 N.W.2d

699, 702 (Iowa 2015) (“We find it unnecessary to decide whether the officer

actually observed a violation of a rule of the road. Instead, we conclude the officer

2 Although Simmons cites the federal and state constitutions, he did not “argue that
a standard independent of the federal approach should be employed under the
state constitution.” State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). We therefore
consider the federal and state “constitutional claims simultaneously, applying the
federal standards as outlined by the United States Supreme Court governing the
Fourth Amendment.” State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021).
6

had reasonable suspicion of intoxicated driving to stop the vehicle and

investigate.”).

Reasonable suspicion justifies a brief detention for investigatory purposes

and is established if “the stopping officer had specific and articulable facts, which

taken together with rational inferences from those facts, to reasonably believe

criminal activity may have occurred.” State v. Tague, 676 N.W.2d 197, 204 (Iowa

2004). The burden is on the State to establish reasonable suspicion by a

preponderance of the evidence. Id. Simmons argues the State failed to meet its

burden because “the State was entirely reliant upon the testimony of Welsh, who

was clearly not credible given the totality of the evidence.”3

Simmons runs into a roadblock from the start given the “considerable

deference” we afford to the “trial court’s findings regarding the credibility of the

witnesses.” Id. at 201. The court made clear credibility findings here, noting

“Welsh testified credibly and without rebuttal” about his observations of Simmons’s

driving. Though we are not bound by those findings, see id., there was no other

evidence in the record that contradicted the deputy’s testimony. See, e.g., State

v. Mohr, No. 19-0070, 2020 WL 564907, at *2 (Iowa Ct. App. Feb. 5, 2020)

(deferring to district court’s credibility findings “regarding the officer—the only

witness to testify at the suppression hearing”). And just because there was no

3 Simmons also touches on some sort of claim that the seizure impermissibly took
place on the curtilage of his home after he parked in his driveway. We agree with
the State that error was not preserved on any claim that entering Simmons’s
property was illegal because that issue was not raised in or decided by the district
court. See State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994) (“We may not
consider an issue that is raised for the first time on appeal, ‘even if it is of
constitutional dimension.’” (citation omitted)).
7

video evidence to support that testimony does not mean we should afford Welsh’s

testimony “zero weight,” as Simmons seems to argue. See id. (“[V]ideo evidence

is one factor to evaluate.”).

In the absence of video evidence, Simmons contends that Welsh was not

credible because, given the position of Welsh’s cruiser, he could not have seen

Simmons drive onto the shoulder of the road during their initial encounter. But

Welsh testified that Simmons made a “very wide turn” onto M Avenue from

Highway 6. It would not be unreasonable to conclude that Welsh, being right next

to Simmons, could tell that Simmons left the paved portion of the road, especially

considering that Welsh’s cruiser was lower to the ground than Simmons’s truck.

So we agree with the State that “[i]t is not illogical or unbelievable that Deputy

Welsh’s vantage point permitted him to see Simmons’[s] truck tires travel onto the

shoulder of the road.”

Setting that point aside, Welsh’s observation of Simmons’s tires leaving the

road was clearly not the basis for the stop, though it piqued Welsh’s interest.

Simmons’s challenges to the credibility of Welsh’s remaining observations

supporting the stop are even weaker. He first complains that Welsh couldn’t

remember which mirror he used—the rearview or sideview—to see Simmons cross

over the centerline after he returned to the road. But who would be expected to

remember that sort of trivial detail at a suppression hearing nearly five months after

the stop? Simmons’s complaints about Welsh’s inability to remember “exactly how

many times or where he was located geographically on the roadway” when he saw

Simmons cross over the center and fog lines are also unconvincing. However

many specific times it was, Welsh’s commentary on the body-camera video that
8

Simmons “[c]rossed center line and went on the shoulder several times”

corroborates his testimony. And it is unrealistic to suggest that the State must

provide measurements or identify specific landmarks of where an observed

infraction occurred in order to meet its burden.

Finally, Simmons argues that Welsh “was distracted during the entire

course of this incident.” But we agree with the district court that these “distractions”

were not “sufficient to discredit [Welsh’s] testimony.” The evidence simply shows

that over the course of the encounter, Welsh ended his phone call, shut his laptop,

reopened it to initiate a traffic program for the stop, and then radioed the stop into

dispatch.

Based on our de novo review of the record, we conclude that Welsh had

reasonable suspicion to investigate whether Simmons was impaired due to his

weaving in and out of his lane in the short distance Welsh followed him. See State

v. Tompkins, 507 N.W.2d 736, 739–40 (Iowa Ct. App. 1993) (collecting cases from

other jurisdictions and adopting majority view that observation of a vehicle weaving

within its own lane gives rise to a reasonable suspicion of impaired driving to justify

stopping the vehicle); State v. Keith, No. 17-1044, 2018 WL 2174089, at *2 (Iowa

Ct. App. Apr. 4, 2018) (collecting cases that swerving, weaving, or crossing lines

provides reasonable suspicion for investigatory stop). We affirm the denial of the

motion to suppress.

AFFIRMED.