State of Iowa v. Jesse Jon Harbach

IN THE COURT OF APPEALS OF IOWA

No. 22-0162
Filed January 11, 2023

STATE OF IOWA,
Plaintiff-Appellant,

vs.

JESSE JON HARBACH,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Monica Ackley,

Judge.

On discretionary review, the State challenges the district court ruling

granting the defendant’s motion to suppress. REVERSED AND REMANDED.

Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellant State.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

GREER, Judge.

After the district court granted Jesse Harbach’s motion to suppress

evidence seized pursuant to a warrant, the State applied for and was granted

discretionary review of the ruling.1 The State argues the district court misapplied

case law in suppressing the evidence based on its determination the warrant

application contained false statements that were made knowingly and intentionally

or with reckless disregard for the truth and, without the statement, the application

failed to establish probable cause. See Franks v. Delaware, 438 U.S. 154, 155–

56 (1978). Because there was probable cause to believe Harbach was impaired

even without the deputy’s false statements, we reverse the district court’s

suppression ruling and remand.

I. Background Facts and Proceedings.

On May 21, 2021, at approximately 5:30 p.m., Harbach was driving a truck

when he was involved in a single vehicle rollover accident. Deputy Sheriff Mitchel

Knipper was sent to the scene, where he interacted with Harbach while Harbach

received medical treatment. Based on that interaction, Deputy Knipper applied for

a warrant to obtain “[a] blood, urine, and/or breath specimen from” Harbach,

claiming he had probable cause to believe Harbach was driving while intoxicated

(OWI) at the time of the accident. See Iowa Code § 321J.2 (2021).2 The deputy

included the following in the warrant application:

1Our supreme court granted the application before transferring the case to us.
2Pursuant to section 321J.2(1), a person commits OWI when they operate a motor
vehicle under any of the following conditions:
a. While under the influence of an alcoholic beverage or other
drug or a combination of such substances.
b. While having an alcohol concentration of .08 or more.
3

Under attachment A-2, titled “observations of impairment,” Deputy Knipper

marked next to “bloodshot eyes,” “watery eyes,” “slurred speech,” “mumbling

speech,” and “smell of alcoholic beverage coming from suspect’s person.”

Additionally, Deputy Knipper included the following:

A judge granted Deputy Knipper’s application, and a blood sample was

taken from Harbach. According to the criminal complaint later filed by Deputy

Knipper, a blood specimen taken from Harbach was tested by the laboratory at the

Iowa Division of Criminal Investigation (DCI) and was determined to contain

634 ng/mil of methamphetamine. Harbach was charged with OWI, first offense.

Harbach filed a motion to suppress, arguing the lab results of his blood

specimen indicated “no alcohol was detected” so Deputy Knipper’s warrant request

“contained a false allegation that the [d]eputy smelled alcohol.” Harbach asserted

c. While any amount of a controlled substance is present in
the person, as measured in the person’s blood or urine.
4

“the warrant was ill-gotten” and “there was no probable cause to support either

warrant or the search.” The State resisted, claiming the medical records from the

first hospital to which Harbach was taken—before he was airlifted to a second

hospital for greater levels of care and where the blood specimen was ultimately

taken—“show that [Harbach] had an ethanol level of 42 (.042) on May 21, 2021 at

6:30 p.m.” The State denied that Deputy Knipper made false statements in his

affidavit for the warrant application and asserted that Harbach was unable to meet

the burden of the Franks test.

The court heard Harbach’s motion in January 2022. Deputy Knipper

testified that when he arrived at the scene of the accident, emergency services

were already rendering aid to Harbach. The deputy spoke with Harbach, who

confirmed he had been alone in the vehicle and was the driver; Harbach mentioned

an issue with the vehicle’s brakes. Harbach believed his truck had rolled on top of

him. Later, when Harbach was in the back of the ambulance, Deputy Knipper

spoke to him again and asked if he had been drinking; Harbach “was not very

forthcoming with many answers.” After Harbach was sent to the local medical

center, Deputy Knipper drove to the sheriff’s office, where he filled out the warrant

application before going to a judge’s home to have it considered. Once the judge

issued the warrant, Deputy Knipper called the local medical center to inform them

to do a blood draw. The blood draw was not completed there because, according

to Deputy Knipper, “there was a concern that there may be further injuries [to

Harbach] because [he] was fighting with medical staff trying to get the blood.” After

Harbach was airlifted to a different hospital, Deputy Knipper obtained a second

warrant and the blood draw was completed—a few hours after the accident took
5

place. DCI tested the blood and reported there was no alcohol in Harbach’s

system.3 At the hearing, the State introduced into evidence a record from the local

medical center, where Harbach’s blood was apparently drawn for diagnostic

purposes (though a specimen was not taken to be sent to DCI); the report included

the following:

No witness offered testimony about the meaning of “42” on the medical chart and

whether it related to a blood alcohol concentration (BAC) or even the ingestion of

alcohol.4

The State also introduced into evidence an approximately twelve-minute

video of the footage from Deputy Knipper’s body camera while he was on the

scene of the accident. It showed that when the deputy arrived, Harbach was

already strapped to a backboard and wearing a neck brace; medical personnel

were actively providing him medical treatment. One of the medical personnel told

the deputy: “Apparently it was an Amish buggy and he dodged to miss the Amish

buggy.” After stating he had not lost consciousness, Harbach added, “My brakes

are shot. I went to hit the brakes and they went to the floor.” Deputy Knipper was

told Harbach believed he was ejected from the vehicle and that he was on the

3 Deputy Knipper testified to this; no report from the DCI lab was admitted into
evidence.
4 At the suppression hearing, Deputy Knipper was asked questions about the

number; he initially suggested the number translated to .042 BAC but, upon further
questioning, admitted he did not have an understanding of blood serum analysis,
did not know how that number came to be calculated, and did not know what a
serum toxicology ethanol level was.
6

ground beside the road when the first witness arrived. Some witnesses who had

been working nearby approached Deputy Knipper and reported hearing squealing

and then, when they “came out, it was tipped over and there was an Amish buggy,

it was parked on the corner there, going up the hill.” The witnesses reported the

buggy had left the scene and they wanted to make sure officers were aware one

was present. Another officer arrived and posed a question to Deputy Knipper, to

which he responded, “I don’t know. All I can smell over there is gasoline” and he

would “hop in with [Harbach] in a little bit or talk to him up there.” A third officer

approached and asked Deputy Knipper if he smelled Harbach; the deputy

responded, “Right where he’s at now it’s just gasoline, but I’m going to guess it’s

55.”5

After Harbach was moved to the back of the ambulance, Deputy Knipper

entered and began asking Harbach questions; when the deputy asked where he

was coming from, Harbach—who was still receiving medical treatment while he

remained on a backboard with the neck brace on—responded, “I can’t talk right

now. It hurts.” Deputy Knipper asked another question and remained in the back

of the ambulance for about another minute—until one of the medical personnel

asked him to move, telling him he was in the way. The deputy left the back of the

ambulance for about thirty seconds and then re-entered, again asking Harbach,

“Where were you heading to? Or where were you coming from, do you know?”

5 “10-55” is an intoxicated drunk driver. See State v. Kooima, No. 11-0738, 2012
WL 1026056, at *5 (Iowa Ct. App. Mar. 28, 2012), vacated by State v. Kooima, 833
N.W.2d 202 (Iowa 2013); see also The APCO Project—A National Training Manual
and Procedural Guide for Police and Public Safety Radio Communications
Personnel, at 60 (Feb. 1968), available at https://archive.org/details/national
training025505mbp/page/n59/mode/2up (last visited Dec. 15, 2022).
7

among other questions. Harbach did not verbally respond and then asked

someone else to intercede, stating, “Hey. Leave me alone; I can’t talk. Hey. Hey.

Tell this guy to quit questioning me; it hurts.” Deputy Knipper remained and asked

Harbach, “Alright, yes or no, did you have anything to drink today? I’ll ask short

questions.” When Harbach did not immediately respond, Deputy Knipper followed

up with, “No? Don’t want to answer?” Harbach said, “No,” and Deputy Knipper

responded, “Okay,” and then exited the ambulance again.6

The district court granted Harbach’s motion to suppress, ruling:

The application for the warrant indicated the reasons for the
warrant were based on the appearance of [Harbach]. The Deputy
contends [Harbach] had bloodshot and watery eyes, his speech was
slurred and mumbled and there was a smell of alcoholic beverage
coming from [his] person. The application indicates [Harbach]
refused to answer questions. The deputy failed to tell the magistrate
that the reason for the refusal related to the fact he was in pain and
injured as he laid on a stretcher with a neck collar strapped to his
head. No mention was made in the application about the Manchester
hospital blood draw showing an ethanol level of .42.[ The record
does not show a BAC. The deputy testified he did not know if the
ethanol level is the same as a BAC.]
The Court finds that the deputy made an assumption as to the
reason for the accident. When he found out who the driver was, the
deputy’s attitude adjusted to conclude [Harbach] was drinking. The
Court’s observation of the body cam video does not show a person
with bloodshot or watery eyes. [Harbach’s] speech was not slurred.
At times he was muttering due to the pain but other times he was
forceful in asking that someone have the questioning stop due to the
pain. The deputy stated he smelled gasoline in the outdoor space
surrounding the location of [Harbach]. The deputy was inside the
ambulance for a very short period of time. Due to the fact the EMTs
were attempting to render aid and use appropriate equipment, the
deputy was asked to exit, as he was in the way of their efforts. He
left the ambulance. But, before it left the scene, he entered one final
time. Again, it was a very short period of time. It is unclear what he
could smell in the ambulance given all the medical supplies
contained inside and the equipment being used on [Harbach].

6 We do not have a transcript of the video; the quotations included are our best
attempt at transcribing from our review of the exhibit.
8

....
. . . The motion to suppress shows that the blood drawn from
[Harbach] by the hospital and analyzed by the DCI Lab detected no
alcohol in [his] system. It begs the question then, how could one
smell what is not present?
[Harbach] has established by a preponderance of the
evidence that the warrant contained false statements. The offensive
statements extracted from the application leaves the remaining
contents lacking in probable cause. Just because a traffic accident
occurs does not automatically mean alcohol was involved. It does
not mean that [Harbach] was drinking as assumed by the deputy.
The deputy had bystanders telling him that they heard tires squealing
and saw the Amish buggy. That in and of itself is not probable cause
for a blood sample. There was no indicia of drinking about the
person of [Harbach].

The State appeals.

II. Standard of Review.

“Our review of challenges to a ruling on the merits of a motion to suppress

is de novo [where, as here,] such claims implicate constitutional issues.” State v.

Baker, 925 N.W.2d 602, 609 (Iowa 2019).

III. Discussion.

In Franks, 438 U.S. at 155–56, “the Supreme Court developed a means to

examine truthfulness of an affiant in presenting evidence to a magistrate

supporting issuance of a search warrant.” State v. Niehaus, 452 N.W.2d 184, 186

(Iowa 1990). The Court held:

[W]here the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request. In the event that at that
hearing the allegation of perjury or reckless disregard is established
by the defendant by a preponderance of the evidence, and, with the
affidavit’s false material set to one side, the affidavit’s remaining
content is insufficient to establish probable cause, the search warrant
9

must be voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the affidavit.

Franks, 438 U.S. at 155–56. And shortly after, our supreme court adopted the

Franks standard for considering veracity claims under the Iowa Constitution. See

State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).

Here, Harbach was not forced to make a preliminary showing of falsehood

to obtain an evidentiary hearing. See id. at 209 (“To mandate an evidentiary

hearing the challenger’s [preliminary showing] must be more than conclusory and

must be supported by more than a mere desire to cross-examine. There must be

allegations of deliberate falsehood or of reckless disregard for the truth, and those

allegations must be accompanied by an offer of proof.” (alteration in original)

(quoting Franks, 438 U.S. at 171)). But, as the State seems to recognize, it cannot

now complain the procedure was inadequate because “the State failed to object in

the district court.” Id. So, we proceed to consider the merits of Harbach’s veracity

claim. See id.

To meet his burden, Harbach must “prov[e] that officers made materially

false statements in the affidavit either deliberately or with a reckless disregard for

the truth.” Baker, 925 N.W.2d at 614. “An officer applying for a search warrant ‘is

not required to present all inculpatory and exculpatory evidence to the magistrate.’”

State v. Green, 540 N.W.2d 649, 657 (Iowa 1995) (citation omitted). But an

omission of facts can constitute a misrepresentation that results in suppression.

See State v. Ripperger, 514 N.W.2d 740, 745 (Iowa Ct. App. 1994) (“The omission

of facts rises to the level of misrepresentation only if the omitted facts ‘cast doubt

on the existence of probable cause.’” (quoting United States v. Eillson, 793 F.2d
10

942, 947 (8th Cir. 1986))). In deciding the veracity question, we are not limited to

the four corners of the warrant application: “[T]he court is ‘limited to considering

the facts presented to the issuing judicial officer in determining whether probable

cause existed, [but] in determining whether misrepresentation was intentional or

material the surrounding facts are relevant and may be considered.’” Green, 540

N.W.2d at 657 (citation omitted).

First the district court took issue with how Deputy Knipper marked the

following as observations of impairment:

We start with the “[s]mell of alcoholic beverage coming from Suspect’s person”

because, in his motion to suppress and at the hearing, Harbach’s only allegation

was that the deputy falsely claimed he “smelled alcohol, when the test results

ultimately showed that there was no alcohol in the blood.” The district court

likewise characterized the deputy’s statement about smelling alcohol as false. Yet,

on this basis, Harbach failed to meet his burden under Franks; we disagree with

the court’s conclusion that no alcohol being found in Harbach’s blood draw means

Deputy Knipper lied about smelling alcohol coming from Harbach. Approximately

three hours elapsed between Deputy Knipper’s interactions with Harbach and the

blood draw that DCI tested;7 it is possible that alcohol was present in Harbach’s

person at the time Deputy Knipper spoke with him that was not detectable three

7 We have no report from DCI or the hospital that completed the blood draw. This
time frame is taken from Deputy Knipper’s testimony at the suppression hearing.
11

hours later. See State v. Johnson, 744 N.W.2d 340, 343 n.1 (Iowa 2008)

(recognizing “blood alcohol level naturally dissipates during a delay . . . as the

alcohol dissipates from the human body”). Also, the district court questioned the

deputy’s ability to smell alcohol coming from Harbach while in the back of the

ambulance due to “the medical supplies contained inside [the ambulance] and the

equipment being used on” Harbach. But we cannot rule out the possibility that the

use of those medical supplies on Harbach was a source of some alcohol smell. In

which case, Deputy Knipper may have been mistaken about smelling alcoholic

beverage coming from Harbach’s person, but a mistake of fact is not the same

thing as an intentional falsehood. See State v. McPhillips, 580 N.W.2d 748, 751

(Iowa 1998) (“To successfully impeach the warrant application . . . [t]he officer’s

conduct must be more than negligence or a mistake.”); cf. State v. Louwrens, 792

N.W.2d 649, 652 (Iowa 2010) (recognizing case law that holds an officer’s

“reasonable mistake of fact” will not undo probable cause for a traffic stop). We

cannot conclude Deputy Knipper was intentionally dishonest or misleading when

he claimed to smell alcoholic beverage coming from Harbach’s person. And our

inability to say one way or the other means Harbach did not carry his burden to

establish Deputy Knipper made materially false statements either deliberately or

with a reckless disregard for the truth when he claimed to smell an alcoholic

beverage coming from Harbach’s person. So we do not “delete” this claim from

the warrant application. See Groff, 323 N.W.2d at 206.

In reaching this conclusion, we give no weight to the report from the local

medical center that Harbach had an “ethanol level” of “42” because the record is

devoid of any explanation of the medical or scientific significance of that
12

information and we will not assume that “42” automatically translates into .042

BAC. The district court relied heavily on the DCI test results of the blood drawn at

the second hospital, which showed a lack of alcohol in Harbach’s system. Even

so, we note Harbach had the burden of proof in this Franks inquiry. Although

Deputy Knipper assumed, whether because of a mistake in interpreting the report

or otherwise, that there would be some ethanol level supporting his claim he

smelled alcohol, Harbach offered no expert testimony distinguishing the report

from the local medical center that referenced an ethanol level with the DCI results

that showed none. Thus, the district court’s sole reliance on the one report does

not prove a deliberate falsehood or reckless statement by Deputy Knipper over his

observations concerning the alcohol consumption without some explanation of the

other results.

We next consider the other observations of impairment noted by Deputy

Knipper: bloodshot eyes, watery eyes, slurred speech, and mumbling speech. The

district court found the following: “[T]he body cam video does not show a person

with bloodshot or watery eyes. [Harbach’s] speech was not slurred. At times he

was muttering due to the pain but other times he was forceful in asking that

someone have the questioning stop due to the pain.” There is no close up of

Harbach’s eyes on the video; at one point his eye is watering and yet, from the

quality of the video, it is difficult to conclude one way or the other whether

Harbach’s eyes were bloodshot and watery. Still, at the suppression hearing,

Harbach did not raise these specific observations as falsehoods or reckless

statements by Deputy Knipper but instead argued that any bloodshot eyes or

speech issues were more likely caused by the rollover accident. So, at best, there
13

was a difference of opinion from the court, Harbach, and Deputy Knipper as to

what caused these observations of impairment. This hardly qualifies as a

falsehood or reckless statement from Deputy Knipper. True, some details of the

accident and Harbach’s condition were not detailed in the warrant application. But

we conclude these details do not rise to the level of a misrepresentation of fact that

casts doubt on the existence of probable cause, see Ripperger, 514 N.W.2d at

745, as the issuing court was informed that Harbach was involved in a rollover

single vehicle accident—with the vehicle “landing on its top”—and that Harbach

was unable to do the “walk and turn” and “one leg stand” tests. While there may

have been other reasons for Harbach’s condition, those noted were legitimate

observations supporting probable cause for the warrant even with injuries from an

accident. See McPhillips, 580 N.W.2d at 750–51 (noting that to succeed in a

Franks claim, the defendant must show the officer purposely untruthful over a

material fact in the warrant application or acted with reckless disregard for the truth

such that the magistrate was misled into believing certain facts used to evaluate

probable cause).

Finally, Deputy Knipper wrote “suspect refused to answer questions,” which

the district court saw as misleading. In stating Harbach refused to answer any

questions, Deputy Knipper omitted the context—that Harbach was strapped to a

backboard, wearing a neck brace, and actively receiving medical treatment in the

back of an ambulance when he told the officer he couldn’t talk because “it hurts.”

And while the deputy’s note is not completely accurate, when pressed on questions

related to intoxication, Harbach refused to answer those questions in spite of the
14

fact he willingly volunteered information not related to a criminal investigation.

Thus, the statement was not completely untrue.

Yet, on our de novo review, we can conclude the deputy did make an

intentionally false or misleading comment in the application for a warrant. See

State v. Niehaus, 452 N.W.2d 184, 188 (Iowa 1990) (“[O]ne focus of a Franks

inquiry is on whether the affiant consciously presented false or misleading

information to the issuing magistrate, or acted recklessly in presenting the factual

information in such a way that it could mislead the magistrate.”). In spite of his

claim Harbach declined the horizontal gaze nystagmus and preliminary breath test,

the video shows the deputy never asked Harbach to complete them.8 Whether he

intentionally provided this inaccurate information or was reckless in presenting it,

these are false statements. See Groff, 323 N.W.2d at 210 (“A ‘false’ affidavit

statement is one which misleads the magistrate into believing the existence of

certain facts which enter into his [or her] thought process in evaluating probable

cause.”); see also State v. Seager, 341 N.W.2d 420, 425 (Iowa 1983) (“[U]nder

[Franks], intentionally false statements and false statements made with a reckless

disregard for the truth are treated the same.”).

We must now “delete” the statements we have found intentionally false and

those made with reckless disregard for the truth and then scrutinize “the remaining

8 The video begins before Deputy Knipper arrived on scene, while he is still driving,
and ends about twelve minutes later, with Deputy Knipper exiting the ambulance,
telling another officer he will “be at the office” and then walking toward a squad
car. From this and Deputy Knipper’s affirmative answer to the question if his body
camera was “activated during the time that [he] was on the scene of the accident
and in [his] conversations with Mr. Harbach,” we infer the video shows the entirety
of Deputy Knipper’s interaction with Harbach.
15

contents . . .to determine whether probable cause appears. See Groff, 323

N.W.2d at 206. Based on our foregoing analysis, we do not consider Deputy

Knipper’s claims that Harbach refused the horizontal gaze nystagmus and the

preliminary breath test. That leaves the deputy’s narrative that a single, rollover

accident occurred while Harbach was driving and that the officer smelled alcoholic

beverage coming from Harbach’s person and observed that Harbach had

bloodshot, watery eyes and slurred, mumbling speech.

As the district court put it, “Just because a traffic accident occurs does not

automatically mean alcohol was involved.” And the smell of alcohol alone—without

any other indicia of impairment—is certainly a weakness to consider when

evaluating probable cause of impairment. Cf. State v. Lovig, 675 N.W.2d 557, 565

(Iowa 2004) (affirming officers had probable cause to arrest for OWI when the

driver of a single-vehicle rollover left the scene of the accident before police

arrived, when one witness smelled alcohol on her breath and beer bottles were

found in and near the vehicle); State v. Wilkes, 758 N.W.2d 838, 845 (Iowa 2008)

(finding probable cause to invoke implied consent when the officer smelled “the

strong odor of alcohol on [the defendant’s] breath, obtained a concession that he

had been drinking, and performed the horizontal gaze nystagmus test”). But here,

we conclude Deputy Knipper presented the necessary evidence to the issuing

court to support probable cause for the warrant. While adding more detail to the

warrant might have suggested other reasons for Harbach’s impairment, certainly

those facts presented by Deputy Knipper offered a common sense conclusion that

a warrant was necessary. Baker, 925 N.W.2d at 613–14 (reviewing warrant

applications under a common sense approach). “We draw all reasonable
16

inferences to support the judge’s finding of probable cause and decide close cases

in favor of upholding the validity of the warrant.” Id. at 614. So, we look to the

totality of the circumstances and find the judge had a substantial basis for

concluding probable cause existed even after we reject Deputy Knipper’s notations

about the testing. See id.

In conclusion, we find a Franks violation occurred as to part of the warrant

application, but after setting “the affidavit’s false material set to one side,” we

conclude “the affidavit’s remaining content” establishes probable cause to support

the issuance of the warrant. See 438 U.S. at 155–56. Therefore, we reverse the

district court’s suppression ruling related to the evidence obtained from the blood

draw and subsequent testing.

REVERSED AND REMANDED.