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IN THE IOWA SUPREME COURT

NO. 14-0029
CIVIL
IN THE MATTER OF PROPERTY
SEIZED FROM ROBERT PARDEE
ROBERT PARDEE,
APPELLANT
APPEAL FROM THE DISTRICT COURT OF POWESHIEK COUNTY
HONORABLE RANDY DEGEEST and HONORABLE JOEL D. YATES
APPELLANTS FINAL BRIEF AND ARGUMENT

STOWERS & SARCONE PLC


Nicholas Sarcone
West Glen Town Center
650 S. Prairie View Drive, Suite 130
West Des Moines, IA 50266
Telephone: (515) 224-7446
Fax: (515) 225-6215
Email: nick@stowerssarcone.com
ATTORNEY FOR APPELLANT

TABLE OF CONTENTS
TABLE OF CONTENTS...i
TABLE OF AUTHORITIESiv
STATEMENT OF THE ISSUES.ix
ROUTING STATEMENT AND REQUEST FOR ORAL ARGUMENT...x
STATEMENT OF THE CASE.1
A.

NATURE OF THE CASE1

B.

COURSE OF PROCEEDING AND DISPOSITION IN THE


DISTRICT COURT..1
1.

CRIMINAL MATTER SRIN013654.1

2.

FORFEITURE MATTER SPLA0020623

STATEMENT OF THE FACTS...6


ARGUMENT...16
I.

THE COURT SHOULD HAVE SUPPRESSED ALL EVIDENCE


OBTAINED DIRECTLY AND INDIRECTLY FROM THE ILLEGAL
SEARCH AND SEIZURE. WITHOUT THAT EVIDENCE THERE IS AN
INSUFFICIENT BASIS FOR FORFEITURE OF THE PROPERTY.16
1.

PRESERVATION OF ERROR..16

2.

STANDARD OF REVIEW16

A.

THE TROOPER CONDUCTED A PRETEXTUAL TRAFFIC STOP


THE ADMITTED PURPOSE OF WHICH WAS TO CONDUCT A
CRIMINAL INTERDICTION INVESTIGATION WHOLLY
UNRELATED TO THE TWO MINOR TRAFFIC VIOLATIONS
FOR WHICH THE TROOPER STOPPED MR. PARDEE IN

VIOLATION OF ARTICLE 1 SECTION 8 OF THE IOWA


CONSTITUTION...17

B.

C.

1.

CRITICISM OF WHREN V. UNITED STATES17

2.

ARTICLE 1, SECTION 8 PROHIBITS PRETEXTUAL


STOPS..21

TROOPER VANDERWIEL VIOLATED MR. PARDEES RIGHT


TO INTERSTATE TRAVEL BY PURPOSEFULLY TARGETING
MR. PARDEE FOR A GENERAL CRIMINAL INVESTIGATION
BECAUSE HIS VEHICLE HAD AN OUT-OF-STATE LICENSE
PLATE IN VIOLATION OF THE 14TH AMENDMENT AND
ARTICLE 1 SECTION 626
1.

THE FUNDAMENTAL RIGHT TO TRAVEL...26

2.

MR. PARDEES CALIFORNIA LICENSE PLATE WAS THE


DETERMINING FACTOR IN TROOPER VANDERWIELS
DECISION TO STOP MR. PARDEE..28

3.

TROOPER VANDERWIELS ACTIONS ACTUALY


BURDENED MR. PARDEES FUNDAMENTAL RIGHT TO
INTERSTATE TRAVEL BY CREATING A BARRIER AND
AN UNWELCOME ENVIRONMENT...30

4.

STATES LACK OF COMPELLING JUSTIFICATION FOR


THE BURDEN ON THE RIGHT TO INTERSTATE
TRAVEL...33

THE TROOPER UNLAWFULLY EXPANDED THE SCOPE OF


THE STOP FOR FOLLOWING TOO CLOSELY AND HAVING A
TAILLIGHT OUT BY CONDUCTING A CRIMINAL
INTERDICTION INVESTIGATION DESIGNED TO DETECT
UNRELATED CRIMINAL ACTIVITY FOR WHICH MR. PARDEE
COULD NOT HAVE BEEN STOPPED IN THE FIRST
PLACE34

ii

D.

BASED ON THE TOTALITY OF THE CIRCUMSTANCES THE


TROOPER DID NOT HAVE REASONABLE SUSPICION TO
CONTINUE TO DETAIN MR. PARDEE.40

E.

THE TROOPER DID NOT HAVE PROBABLE CAUSE TO


SEARCH MR. PARDEES VEHICLE BECAUSE THE STATE
FAILED TO PROVE THE DRUG DOG WELL-TRAINED AND
RELIABLE.49
1.

THE DOG WAS UNRELIABLE UNDER THE TEST IN


FLORIDA V. HARRIS49

2.

ADOPTION OF HARRIS V. STATE UNDER ARTICLE 1,


SECTION 8..51

CONCLUSION...53
CERTIFICATE OF FILING...55
CERTIFICATE OF SERVICE....55
CERTIFICATE OF COST..55
CERTIFICATE OF COMPLIANCE WITH TYP-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS..56

iii

TABLE OF AUTHORITIES
Cases
Alabama v. White, 496 U.S. 325 329 (1990)..37
Arizona v. Johnson, 555 U.S. 323 (2009).19, 36
Berkemer v. McCarty, 468 U.S. 420 (1984).18, 35
Comes v. Microsoft Corp., 709 N.W.2d 114, 118 (Iowa 2006)3
Commonwealth v. Torres, 674 N.E.2d 638, (Mass. 1997)..37
Delaware v. Prouse, 440 U.S. 648, 653 (1979)...18
Florida v. Harris, 133 S.Ct. 1050 (2013)...49, 53
Florida v. Royer, 460 U.S. 491, 500 (1983)36
Formaro v. Polk County, 773 N.W.2d 834, 838-839 (Iowa 2009)..27
Grant v. Iowa Department of Human Services, 722 N.W. 169, 174 (Iowa 2006)3
Harris v. State, 71 So.2d 756 (Florida 2011).51-53
Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981)..3
Illinois v. Caballes, 543 U.S. 405, 407, 409 (2005)19, 39, 49
In re Property Seized from Rush, 448 N.W.2d 472, 477 (Iowa 1989)17
In the Matter of Property Seized from Michael Scott Daniels, 478 N.W.2d 622, 623
(Iowa 1991)..16
In the Matter of Property Seized from Sharon Kay Flowers, 474 N.W.2d 546 (Iowa
1991)17
Knowles v. Iowa, 525 U.S. 113, 117 (1998)...19

iv

Muehler v. Mena, 544 U.S. 93, 101-02 (2005)...19


OBoyle v. State, 117 P.3d 401 (Wyo. 2005)..37
Ohio v. Robinette, 519 U.S. 33, 39 (1996)..19
One 1958 Plymouth Sedan v. Commonwealth, 380 U.S. 693, 85 S. Ct. 1246
(1965)...17
Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 1525, 143 Ed.2d 689, 702
(1999).......27
State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996).34-35
State v. Baldon, 829 N.W.2d 785, 810 (Iowa 2013)..23-24
State v. Bergmann, 633 N.W.2d 328, 337 (Iowa 2001)36, 43
State v. Cline, 617 N.W.2d 277, 286 (Iowa 2000).23-24
State v. Coughlin, 200 N.W.2d 525, 526 (Iowa 1972)..4
State v. Cunningham, 954 A.2d 1290, (Vt. 2008)...37
State v. Estabillio, 218 P.3d 749 (Hawaii 2009).37
State v. Fort, 660 N.W.2d 415, (Minn. 2003)..37
State v. Hanrahan, 838 N.W.2d 868 (Iowa Ct. App. 2013)(unpublished
opinion).2, 4, 42-43, 45, 47-48
State v. Harrison, ___ F.2d ___ (Iowa 2014)..21
State v. Holtsinger, 797 N.W.2d 622 (Iowa Court App. 2011)(unpublished
opinion)..4
State v. Klinger, 259 Iowa 381 (Iowa 1966).4
State v. Ladson, 138 Wash.2d 343, 979 P.2d 833 (Washington
1999)...18, 20-21, 26

State v. Nadler, 705 N.W.2d 107, 2005 WL 1630004, at *3 (Iowa Ct. App.
2005)...36, 40-41, 48
State v. Nikolsky, 796 N.W.2d 458, 2004 WL 151070, at * 8 (Iowa Ct. App.
2004)....41
State v. Ochoa, 146 N.M. 32, 37-38 (Ct. App. 2008).17-18, 20, 23-24, 26
State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011)...17, 23, 34-35
State v. Rodgers, 227 P.3d 695 (Or. 2010)..37
State v. Scanlon, 829 N.W.2d 589 (Iowa Ct. App. 2013)35-36, 48
State v. Smith, 683 N.W.2d 542 (Iowa 2004).36
State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004).40
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)..18-19, 35
U.S. v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)...35
U.S. v. Barron-Cabrera, 119 F.3d 1454, 1461 (10th Cir. 1997)...44
U.S. v. Beck, 140 F.3d 1129, 1138 (8th Cir. 1998)..43
U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d
607, 614-15 (1975)..18
U.S. v. Guest, 383 U.S. 745, 758 86 S.Ct. 1170, 1178, 16 L.Ed. 2d. 239, 249
(1966)...26
U.S. v. Hare, 308 F.Supp.2d 955, 1001 (N.D. Neb. 2004)27, 30
U.S. v. Martinez-Fuerte, 428 U.S. 543, 554-59, 96 S.Ct. 3074, 3081-84, 49 L.Ed.
2d 1116, 1126-29 (1976).18
U.S. v. Peralez, 526 F.3d 1115 (8th Cir. 2008)39

vi

U.S. v. Place, 462 U.S. 696, 707 (1983)..49


U.S. v. Sharpe, 470 U.S. 675 (1985).......18
United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997)44
Whren v. United States, 517 U.S. 806, 812-16, 116 S. Ct. 1769, 1774-76, 135 L.
Ed. 2d 89, 97-100 (1996)17-21, 24-25
Rules
Federal Rule of Criminal Procedure 11(a)(2)3
Other Authorities
4th Amendment of the U.S. Constitution.x, 17-19, 23-24
14th Amendment of the U.S. Constitution...x, 26
Article 1, Section 6 of the Iowa Constitution..x, 26
Article 1, Section 8 of the Iowa Constitution...x, 21, 23-25, 51, 53
Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog
Scent Lineup, 42 Hastings L.J. 15 (1990)...52
Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog: Extending the
Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L.Rev. 735
(2007)...52
Mark S. Cady, A Pioneers Constitution: How Iowas Constitutional History
Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and Civil
Liberties, 60 Drake L.Rev. 1133, 1145 (2012)23
Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First
Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633
(1997)...20
Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L.Rev. 1
(2006).52-53

vii

Robert C. Bird, An Examination of the Training and Reliability of the Narcotics


Detection Dog, 85 Ky. L.J. 405 (1997))..52

viii

STATEMENT OF THE ISSUES


I.

THE COURT SHOULD HAVE SUPPRESSED ALL EVIDENCE


OBTAINED DIRECTLY AND INDIRECTLY FROM THE ILLEGAL
SEARCH AND SEIZURE. WITHOUT THAT EVIDENCE THERE IS AN
INSUFFICIENT BASIS FOR FORFEITURE OF THE PROPERTY.
A.

THE TROOPER CONDUCTED A PRETEXTUAL TRAFFIC STOP


THE ADMITTED PURPOSE OF WHICH WAS TO CONDUCT A
CRIMINAL INTERDICTION INVESTIGATION WHOLLY
UNRELATED TO THE TWO MINOR TRAFFIC VIOLATIONS
FOR WHICH THE TROOPER STOPPED MR. PARDEE IN
VIOLATION OF ARTICLE 1 SECTION 8 OF THE IOWA
CONSTITUTION.

B.

TROOPER VANDERWIEL VIOLATED MR. PARDEES RIGHT


TO INTERSTATE TRAVEL BY PURPOSEFULLY TARGETING
MR. PARDEE FOR A GENERAL CRIMINAL INVESTIGATION
BECAUSE HIS VEHICLE HAD AN OUT-OF-STATE LICENSE
PLATE IN VIOLATION OF THE 14TH AMENDMENT AND
ARTICLE 1 SECTION 6.

C.

THE TROOPER UNLAWFULLY EXPANDED THE SCOPE OF


THE STOP FOR FOLLOWING TOO CLOSELY AND HAVING A
TAILLIGHT OUT BY CONDUCTING A CRIMINAL
INTERDICTION INVESTIGATION DESIGNED TO DETECT
UNRELATED CRIMINAL ACTIVITY FOR WHICH MR. PARDEE
COULD NOT HAVE BEEN STOPPED IN THE FIRST PLACE.

D.

BASED ON THE TOTALITY OF THE CIRCUMSTANCES THE


TROOPER DID NOT HAVE REASONABLE SUSPICION TO
CONTINUE TO DETAIN MR. PARDEE.

E.

THE TROOPER DID NOT HAVE PROBABLE CAUSE TO


SEARCH MR. PARDEES VEHICLE BECAUSE THE STATE
FAILED TO PROVE THE DRUG DOG WELL-TRAINED AND
RELIABLE.

ix

ROUTING STATEMENT AND REQUEST FOR ORAL ARGUMENT


The issues raised are important and issues of first impression regarding
personal rights under the Fourth & Fourteenth Amendments of the United States
Constitution, Article 1, Sections 6 & 8 of the Iowa Constitution, ClaimantAppellant Robert Pardee requests that the Supreme Court retain jurisdiction.
Appellant Pardee additionally requests 15 minutes per side at oral argument.

STATEMENT OF THE CASE


A.

Nature of the Case

Mr. Pardee appeals from several rulings denying his Motion to Suppress on
the basis of res judicata (Honorable Randy S. DeGeest and Joel D. Yates) and on
the merits and from the Judgment of Forfeiture entered in Case Number
SPLA002062 (DeGeest).
B.

Course of Proceeding and Disposition in the District Court

On June 13, 2012, Robert Pardee was stopped in Poweshiek County.


(A1103-111). $33,100.00 was seized from Mr. Pardee and a small amount of
marijuana was found in the vehicle. Id. A criminal complaint was filed on June 14,
2012, Criminal Case No. SRIN0136542. (A2). On September 4, 2012 an In Rem
Forfeiture Complaint was filed against the $33,100.00. To understand the course
of the forfeiture case, it is necessary to understand the proceedings in
SRIN013654.
1. Criminal Matter SRIN013654
A Trial Information was filed on June 20, 2012 alleging one count of
possession of a controlled substance. (A3-4). On August 9, 2012, Pardee filed a
Motion to Suppress alleging law enforcement unlawfully stopped him, that he was

A refers to the Appendix in this matter.


The District Court took judicial notice of the criminal case file in the
Forfeiture Hearing. (A184, Pg 111 Ln13-14).
2

illegally detained and the scope of the stop unlawfully expanded, that his detention
was unlawfully prolonged, that law enforcement performed an unlawful K-9 sniff
and that the K-9 sniff did not give probable cause to search the vehicle. (A5-6). A
hearing was set for August 20, 2012. On August 15, 2012, Pardee filed a Motion
to Produce K-9 records. (A7-10). At the August 20, 2012, hearing the State
produced training and certification records but not field deployment records for the
K-9. (A12-21). The Court refused to rule on the motion to produce K-9 records.
Id. The remainder of the hearing was continued to August 29, 2012. At the August
29, 2012 hearing, Mr. Pardee again requested the field records of the K-9. (A7377). The Court denied the Motion to Produce. Id. The suppression hearing
concluded on August 29, 2012. On August 30, 2012, the District Associate Court,
Judge DeGeest, entered an Order denying the Motion to Suppress3. (A99-102). On
September 12, 2012, Pardee filed a motion to Enlarge/Reconsider. (A112-117).
On September 26, 2012, the Court denied the motion to enlarge/reconsider. (A118119). On July 2, 2013, a stipulated bench trial was held4. On August 29, 2013, the
Court found Pardee not guilty. (A165-168).

The Order denying the Motion to Suppress was almost identical to the
Order Judge DeGeest entered in State v. Hanrahan. That Order was noted in and
attached to the Motion to Enlarge/Reconsider as Exhibit A.
4
A stipulated bench trial is the usual vehicle utilized by a criminal defendant
challenging an adverse, dispositive pre-trial motion to suppress, without
proceeding through a jury trial. A guilty verdict permits appeal of the denial of the

2. Forfeiture Matter SPLA002062


Pardee filed an Answer to the In Rem Complaint on October 26, 2012.
(A122-123). On the same date Mr. Pardee filed a Motion to Suppress. (A120-121).
On February 11, 2013, the State filed a document entitled Legal Argument
Regarding Motion to Suppress. (A124-126). Later on February 11, 2013, a
suppression hearing was held consisting mostly of legal argument regarding
whether criminal ruling should be given preclusive effect in the forfeiture matter.
The Motion was denied by the District Court, Judge Yates, based on res judicata,
as the Court found the ruling in SRIN013654 was binding5. (A130-131). A

dispositive ruling. Iowa does not allow conditional pleas like Federal Rule of
Criminal Procedure 11(a)(2).
5
The District Court, Judge DeGeest, revisited the Motion to Suppress at the
end of the forfeiture hearing and ultimately denied it for reasons he stated in
SRIN013654. Pardee argues the Ruling in SRIN013654 never should have had
preclusive effect in the forfeiture matter. The Courts ruling cited Res Judicata or
Claim Preclusion but it is properly understood as collateral estoppel. The elements
of collateral estoppel are 1) the issue must be identical, 2) the issue must have been
raised and litigated in the prior action, 3) the issue must have been material and
relevant to the disposition of the prior action and 4) the determination made of the
issue in the prior action must have been necessary and essential to the resulting
judgment. Comes v. Microsoft Corp., 709 N.W.2d 114, 118 (Iowa 2006)see also,
Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981); Grant v. Iowa
Department of Human Services, 722 N.W. 169, 174 (Iowa 2006); Restatement 2nd
Judgments. The Trial Court found Pardee not guilty. The Ruling on the Motion to
Suppress was not material nor relevant to the ultimate not guilty verdict.
Additionally, the fourth prong of the test is applied very narrowly. Comes, 709 at
118. The Suppression Ruling was not necessary nor essential to the judgment. See
Comment (h) to the Restatement of Judgment 27, 2014. Moreover, since Mr.
Pardee was found not guilty at his stipulated bench trial, he could not challenge the
adverse ruling on appeal as a not guilty verdict is not a final judgment. State v.

forfeiture hearing began on September 17, 2013. Prior to beginning, Pardee again
raised his Motion to Suppress arguing for reconsideration in light of two
intervening from the Court of Appeals including State v. Hanrahan, 838 N.W.2d
(Iowa Ct. App. 2013)(unpublished opinion)6. (A170-171, Pgs 5-10). The District
Court, Judge DeGeest7, declined to reconsider his ruling on the Motion to
Suppress. Id. At the conclusion of the evidence, when the totality of the record
had been entered8, including the Court file in SRIN013654 which the Court took
judicial notice of9, and the transcripts from the suppression hearing in
SRIN013654, Pardee again asked the Court to reconsider the Motion to Suppress
previously denied in this case and in SRIN013654. (A193-194). The Court denied
the Motion for apparently the same reason as it had been denied in the criminal

Coughlin, 200 N.W.2d 525, 526 (Iowa 1972); State v. Holtsinger, 797 N.W.2d 622
(Iowa Court App 2011)(unpublished opinion); See also, State v. Klinger, 259 Iowa
381 (Iowa 1966). Lastly, the District Court is specifically tasked with handling
controversies in an amount greater than District Associate Court, thus the District
Court had special competence to rule in the forfeiture case.
6
Judge DeGeests ruling in State v. Hanrahan was overturned on August 7,
2013, by the Iowa Court of Appeals in State v. Hanrahan, 838 N.W.2d 868 (Iowa
Ct. App. 2013)(unpublished opinion).
7
Judge DeGeest was a District Associate Judge when he ruled on the
Motion to Suppress in SRIN013654. Subsequently, he was elevated to the District
Court and thus, became able to hear the forfeiture matter.
8
The transcripts from the Motion to Suppress in SRIN013654, were
stipulated to by the parties and received into evidence at the forfeiture hearing in
lieu of additional testimony by Troopers Vanderwiel and Baker.
9
(A184, Pg. 111 Ln 13-14).

matter. Id. The Court entered judgment in favor of the State and ordered the cash
forfeited to the State of Iowa.

STATEMENT OF THE FACTS


Iowa State Trooper Eric Vanderwiel stopped Robert Pardee and John
Saccento10 on the morning of June 13, 2012, allegedly for failure to have a working
taillight and for following too closely. (A1). At that time the Trooper was working
on one of two Iowa State Patrol Criminal Interdiction Teams. (A32). The
Troopers team was the Criminal Interdiction Team East. Id. The other team is the
Criminal Interdiction Team West. Id. According to the Trooper, the Criminal
Interdiction Teams job is to look beyond the stop and figure out whos innocent
motoring public and whos currently involved in on-going criminal activity. Id. at
A22. Members of the Interdiction Teams use traffic stops as an avenue through
which they can generally investigate the motorists activities for evidence of some
other form of criminal activity. In particular, members of the Criminal Interdiction
Team target out of state motorists:
Q. Now you indicated earlier that the California license plate in this case
was significant because it represents a drug source state; correct?
A. Yes.
Q. What other states represent drug source states in your view?
A. Arizona is big, Washington, Oregon kind of like the southwest area or the
western part down there.
Q. Would there be any other areas across the country that you would look
for as drug source states?
A. Not necessarily where the drugs are coming from. A lot of the drugs are
coming from the Mexican border like stuff like that down there.
Q. So west-southwest license plates are significant to you because thats
where drugs are coming from?

10

Saccento was driving.


6

A. Yes.
Q. Would it be also then fair to say that license plates sort of towards the
eastern United States are significant because the money comes from that
direction?
A. Yes.
Q. So people coming from that direction are going to buy drugs in the west,
and people coming from the west are bringing the drugs to sell to the east?
A. Correct. Yes. Just to make sure I got that right, drugs go east and money
goes west for the majority.
Q. Right. And so in particular, as a member of the interdiction detail, youre
looking you are youre out there looking for drug source state plates or
money source states, money source state plates; correct?
A. Yes.
Q. And thats because those particular plates are more likely to be engaged
in some form of criminal activity, maybe drug smuggling or some other
form of criminal activity; correct?
A. Yes. For what I do.
(A33-34). The Trooper also testified that in-state or Iowa license plated vehicles
are not typically stopped for interdiction activities. (A50).
A criminal interdiction stop and investigation by a member of one of the
Criminal Interdiction Team members is not like a normal traffic stop. According
to the Trooper, the criminal interdiction investigation actually begins at the
moment the Trooper begins to observe the vehicle:
Q. And then when you when you notice an out-of-state-plate like that that
you think might be suspicious, if theres a reason that gives you probable
cause, you will pull the vehicle over; correct?
A. Yes.
Q. And when you pull that vehicle over then, thats when the interdiction
investigation begins; correct?
A. Yes. Well, it begins a little bit before. You always watch and see how
people react when they go past you and stuff like that.
Q. So the interdiction investigation really begins and like in this case with
the observation of the vehicle going past your stationary location?

A. Yes. It begins when I see the vehicle.


(A34-35).
During a criminal interdiction stop, the Trooper has been trained to conduct
a motorist interview; a series of very detailed questions regarding the motorists
activities. (A30-31). This interdiction interview is used purposefully as an
investigative tool to determine whether a person stopped for a minor traffic
violation is engaged in some higher form of criminal activity. Id. (A28).
In this matter, the Trooper noted that the first observation he made of the
Pardees vehicle was that it was a California-plated vehicle. (A173, Pg. 40 Lns 1316). The Trooper also noticed that the driver had his hand over his face. (A173,
Pg. 40 Ln. 20-21). While the Trooper found this suspicious, he admitted that he did
not see the driver put his hand up to his face and for all he knew the driver could
have been wiping a booger from his nose. (A43).
The Trooper then pulled out and caught up to it [the vehicle]because I
wanted to take a closer look at it and see if I would be able to stop it. (A174, Pg
44 Lns 6-7). When the Trooper caught up to the vehicle, he noticed the driver had
his hands at the 10 and 2 positions. (A45). The Trooper found this to be indicative
of criminal activity because according to his rationale people involved in criminal
activity try very hard not to commit any traffic infractions. (A175, Pg 45 Lns 3-

13). Of course, Saccento11, did commit a traffic infraction by following too closely
and additionally the vehicle had a taillight out. (A175, Pg 45 Ln 23 Pg 46 Ln 3).
Upon observing the traffic infractions, the Trooper initiated a traffic stop.
Because this was an interdiction investigation the Trooper determined prior
to approaching Mr. Pardees vehicle that he intended to write only a warning
citation:
Q. All right. So at the time that you pulled over Mr. Pardee and Mr.
Saccento for following too close and having their taillight out, you
determined prior to approaching the vehicle that you were going to give
them a warning citation?
A. Yes.
Q. Because you knew that you had a California license plate, a car pulled
over, and you were going to conduct an interdiction investigation on the car;
correct?
A. Yes.
(A46).
The Trooper explained the importance of writing a warning citation during
an interdiction investigation:
Q. And when you talk to them about the reasons that you pulled them over,
the vast majority of the time, you would agree with me, that you tell them
right up front that youre going to issue them a warning citation; correct?
A. Yes. If it was usually I know if its a if Im going to right [sic] a
ticket or if Im going to write a warning before the stop ever takes place
depending on the violation yes.
Q. So you write tickets for more significant violations I would guess.
A. Yes.

11

Mr. Saccento pled guilty to one count of possession of a controlled


substance.

Q. So like if somebody was going 110 or something like that, youre


probably going to write them a ticket; right?
A. Yes.
Q. But if its an out-of-state-plate thats maybe got a taillight out or
something like that, youre probably going to write them a warning citation;
is that correct?
A. Yes.
Q. And thats particularly significant for your purposes. Your interdiction
purposes, because informing the person that theyre going to get a warning
citation in your view should then lessen their overall nervousness.
A. Yes, usually.
(A35-36).
After approaching the vehicle and informing Saccento and Pardee that he
was only going to issue a warning, the Trooper asked Saccento for his drivers
license and registration and asked Pardee for identification. (A199, 9:32:01
9:32:10). The Trooper asked Saccento to sit in the police car while he issued the
warning. (Video 9:33:57; A200). Saccento spent roughly the next twenty-two
minutes in the front of the Troopers vehicle. (Video 9:33:57 -9:55:32; A201-218).
While Saccento was in the Troopers car, the Trooper engaged him in a
series of detailed and often repetitive questions about his destination, travel plans,
work history and relationship with Mr. Pardee. (Video 9:34:33 9:50:59; A201218). The Trooper also ran Saccento and Pardees background for warrants and
exited his vehicle to speak with Mr. Pardee for several minutes. (Video 9:39:37
9:50:59; A205-218). The Trooper admitted that virtually everything he did while
Mr. Pardee was seated in his vehicle, other than fill out the warnings, was

10

completely unrelated to the traffic stop. Id. (A55-67). Virtually everything was
part of his interdiction investigation. Id.
Q. All right. And you notice that at 9:34:55 your first question to Mr.
Saccento while hes in your vehicle is So youre moving back to Jersey;
correct?
A. Yes.
Q. And he explains to you that hes moving from California; correct?
A. Yes.
Q. And that all is not related to the following too closely or to the taillight
being out; correct?
A. Correct.
Q. Its related to your separate interdiction investigation; correct?
A. Correct.
(A55-56).
***
Q. The criminal history check had nothing do with the warning citations;
correct?
A. Correct.
Q. That was part of the interdiction investigation correct?
A. Yes.
(A60).
***
Q. When you made contact with the driver. Again, that occurred at
9:31:48 correct?
A. Yes.
Q. In the intervening time starting at, if you go again to page three, 9:34:55
was when you asked the question so youre moving back to jersey;
correct? So between 9:34:55 and 9:38:53, you engage Mr. Saccento in a
conversation which is actually the conversation pursuant to an investigation
which has nothing to do with the reason that gave you probable cause to put
[sic] the vehicle over in the first place; correct?
A. Youre going to have to

11

Q. So from the time that Mr. Saccento entered the vehicle until you called in
his information to dispatch, you engaged him in conversation about his
destination and travel plans; right?
A. I believe so. Youre going to have to give me the times again.
Q. Okay. The time is if we start on page three.
A. Yeah
Q. We start at 9:34:55 which is toward the bottom there?
A. Yep.
Q. Until page seven?
A. Yep.
Q. 9:38 well say 37, which is when you phoned dispatch for the 27 & 29?
A. Yes.
Q. The intervening time you engaged Mr. Saccento in a conversation, the
purpose of which was to determine whether or not he was engaged in
additional criminal activity, correct, unrelated to the traffic stop itself.
A. Id have to go through the questions.
Q. Go ahead.
A. Well, some of theres in here are like 9:35:22 said Ive seen a lot along
the way, stopped at Boulder. And I said Oh, did ya? And Mr. Saccento
said Zion, couple national parks. I asked him what part of Jersey hes
moving to.
Q. Right. And my point is that those questions didnt they werent related
to whether or not his taillight was out ot whether or not he was following too
closely to the vehicle in front of him; correct?
A. Yes.
Q. They were related to the interdiction investigation; right?
A. Yes. His travel.
(A60-62).
***
Q. After you run the wants and warrants and the criminal history check, you
re-engaged, and this were going to go to page eight at the top 9:39:49 you
re-engaged Mr. Saccento in your interdiction investigation; correct?
A. Im sorry say the time again?
Q. 9:39:49.
A. Re-engaged what?
Q. Mr. Saccento in questioning related to your interdiction investigation;
correct?

12

A. There Im asking if he worked for Prudential in California.


Q. Right. And that, again, is a question related to your interdiction
investigation; correct?
A. Yes and no. Just tells me if he is employed or not.
Q. Right. And the reason thats important is because you use that in your
calculus of determining whether or not you believe the trip was cost
effective; correct?
A. Yes.
Q. So its a part of your interdiction investigation; correct?
A. Yes.
Q. So for the remainder, lets say, you continue to question Mr. Saccento
about his destination and travel plans as well as his relationship with Mr.
Pardee from about 9:39:49 until you exit the vehicle to speak with Mr.
Pardee at about 9:50:59; is that correct?
A. I believe so.
(A64-65).
***
Q. Okay. Now, while they were printing out, you went up to give Mr. Pardee
his information back; correct?
A. Yes. I gave him his license back.
Q. And you asked him a series of questions regarding their travel plans
again; correct?
A. Yes.
Q. Those questions were to determine whether or not he would give answers
different from Mr. Saccentos; correct?
A. Yes.
Q. Again part of your interdiction investigation is to determine whether or
not two people can give the same story?
A. Yes.
Q. But you didnt for purposes of the actual traffic part of the stop, you
didnt need to discuss those issues with him; correct?
A. Correct.
Q. So really you could have given Mr. Saccento the warning citations, he
could have gone back to the vehicle and at that point you could have gone up
and given Mr. Pardee his license back; correct?
A. Yes.

13

(A66-67).
The Trooper testified that to write a warning all he needs is the information
contained on the motorists drivers license. (A37). He also testified that it is
unnecessary for the driver to come back to his vehicle while he writes the warning
citation. (A41). The real purpose in having Saccento sit in his cruiser was to
conduct the interdiction interview:
Q. Even though, again, weve discussed this, even though you were just
issuing a warning citation, you had Mr. Saccento come back to you vehicle
with you; correct?
A. Yes.
Q. Even though it wasnt necessary in order to fill out the citations; correct?
A. Yes.
Q. Now you did this because as a part of your interdiction investigation you
had to ask him [Saccento] questions constituting the interdiction interview;
correct?
A. Yes.
(A54).
The Trooper testified that he could write the warnings much more quickly
had he not been engaged in the interdiction interview:
Q. All right. Now, during the time this time that you are questioning Mr.
Saccento in his vehicle, youre also, trying to fill out the warning citations;
correct?
A. Yes.
Q. And I will be it would be correct to say that if you werent engaged in
this conversation, you could write out the warning citations a good deal
quicker, couldnt you?
A. Yes.

14

(A66). The Trooper agreed he previously testified it should take about five
minutes to write out the warnings. (A40). The Trooper then hedged and testified
the stop might take 10-12 minutes if he was acting diligently. (A40-41).
After the Trooper finished speaking with Pardee, he returned to his patrol
car, had Saccento sign the warning citations and told Saccento to have a safe trip.
(Video 9:53:40 9:55:22; A217-218). As Saccento exited the vehicle, the Trooper
exited and began questioning Saccento anew. (A218-220). The questions asked
whether Saccento had any illegal drugs or large amounts of currency in his car. Id.
The Trooper asked if the pair would be willing to wait for a drug dog to sniff their
vehicle. Id. Saccento and Pardee indicated they would not wait. The Trooper then
detained them and called for a drug dog. Id. The dog arrived minutes later and
returned a positive result. The vehicle was searched and a small amount of
marijuana and $33,100.00 was seized. Other facts will be discussed as needed.

15

ARGUMENT
I.

The Court Should Have Suppressed All Evidence Obtained Directly


And Indirectly From The Illegal Search And Seizure. Without That
Evidence There Is An Insufficient Basis For Forfeiture Of The
Property.
1.

Preservation of Error

Error was preserved when Pardee filed a motion to suppress evidence.


(A120-121). The motion was denied on February 11, 2013. (A127-128). Mr.
Pardee again raised the motion to suppress and made additional argument at the
beginning of his forfeiture hearing. (A170-171, Pgs 5-9.) That motion was denied
on September 17, 2013. Id. Finally, at the close of evidence Pardee again raised
his motion to suppress after all of the evidence was in including the file and
transcripts in SRIN013654, which included legal argument from the motion to
suppress in SRIN01365412. (A193-194). The motion was denied on December 11,
2013. Id.
2.

Standard of Review

The standard of review in a forfeiture proceeding is for errors of law. In the


Matter of Property Seized from Michael Scott Daniels, 478 N.W.2d 622, 623
(Iowa 1991)(citations omitted). A district courts findings in a forfeiture action

12

Also heard in front of Judge DeGeest.


16

will be upheld if supported by substantial evidence. In re Property Seized from


Rush , 448 N.W.2d 472, 477 (Iowa 1989).
In, In the Matter of Property Seized from Sharon Kay Flowers, 474 N.W.2d
546 (Iowa 1991), the court determined that the exclusionary rule applies in a
forfeiture proceeding just like a criminal proceeding. Id. at 548. This is consistent
with United States Supreme Court precedent. One 1958 Plymouth Sedan v.
Commonwealth, 380 U.S. 693, 85 S. Ct. 1246 (1965). Thus, review of the
constitutional issues in this case is de novo. State v. Pals, 805 N.W.2d 767, 771
(Iowa 2011). Findings of fact are entitled to deferential, but non-binding, review.
Id.
A.

The Trooper Conducted A Pretextual Traffic Stop The admitted


Purpose Of Which Was To Conduct A Criminal Interdiction
Investigation Wholly Unrelated To The Two Minor Traffic
Violations For Which The Trooper Stopped Mr. Pardee In
Violation Of Article 1, Section 8 Of The Iowa Constitution.
1.

Criticism of Whren v. United States.

In 1996 the United States Supreme Court decided that the Fourth
Amendment does not prohibit pretextual traffic stops, so long as an objectively
reasonable basis, such as a traffic law violation, exists for the seizure. Whren v.
United States, 517 U.S. 806, 812-16, 116 S. Ct. 1769, 1774-76, 135 L. Ed. 2d 89,
97-100 (1996). Since Whren was decided, it has been roundly criticized by legal
scholars. See, State v. Ochoa, 146 N.M. 32, 37-38 (Ct. App. 2008). Two State

17

Supreme Courts, Washington and New Mexico, have declined to follow it under
their state constitutions. State v. Ladson, 138 Wash.2d 343, 979 P.2d 833
(Washington 1999); State v. Ochoa, 146 N.M. 32 (Ct. App. 2008).
Some of the criticism of Whren, stems from the confusion that the Supreme
Court has wrought in its pre-Whren and post-Whren jurisprudence. In Delaware v.
Prouse, 440 U.S. 648, 653 (1979), the Court said that stopping an automobile and
detaining its occupants constitutes a seizure under the 4th Amendment even though
the purpose of the stop is limited and the detention quite brief. In Berkemer v.
McCarty, 468 U.S. 420 (1984), the Court again reiterated that the usual traffic stop
should last only a brief few minutes, involve questions related to the reason for the
stop, be a publicly viewable citizen police encounter, and conclude with the citizen
being told they were free to leave. Id. at 439. The Court actually characterized the
routine traffic stop as more of a Terry-type stop. Id. (citations omitted). This led
the Court to conclude that the characteristics of a usual traffic stop were so
innocuous that any questioning did not require Miranda warnings. Id.
In 1985, the Supreme Court decided U.S. v. Sharpe, 470 U.S. 675 (1985), in
which the Court specifically engaged in a Terry analysis to determine whether the
traffic stop was reasonable13. The Terry-stop analysis first asks whether the

13

See also United States v. Martinez-Fuerte, 428 U.S. 543, 554-59, 96 S.Ct.
3074, 3081-84, 49 L.Ed.2d 1116, 1126-29 (1976); United States v. BrignoniPonce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607, 614-15 (1975).

18

officers actions were justified at inception, and second, whether the subsequent
actions of the officer were reasonably related in scope to the circumstances
justifying the stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). In Knowles v. Iowa, 525 U.S. 113, 117 (1998) the Supreme Court struck
down Iowas practice of vehicle search incident to citation. There again, the Court
analogized the routine traffic stop to a Terry-type stop. Id.
More recently, the Supreme Court began to walk back the protections
afforded to motorists by the 4th Amendment. This constitutional erosion arguably
started with Whren. The Court has allowed during traffic stops such things as:
requests for consent to search14, questioning unrelated to the basis for the stop15,
and the deployment of a drug dog to sniff the exterior of a stopped vehicle16.
These actions maybe permissible during routine traffic stops, if the duration of
the stop is not measurably extended. Problematically, these cases are all seemingly
inconsistent with the time-honored two-prong Terry analysis. Dissents by Justice
Souter and Justice Ginsburg in Illinois v. Caballes, 543 U.S. 405 (2005), articulate
this nicely. Whren, Robinette, Johnson and Caballes are all now used to justify the
entirety of pretextual stops from their inception to their conclusion.

14

Ohio v. Robinette, 519 U.S. 33, 39 (1996).


Muehler v. Mena, 544 U.S. 93, 101-02 (2005); Arizona v. Johnson, 555
U.S. 323 (2009).
16
Illinois v. Caballes, 543 U.S. 405, 407 (2005).
15

19

Whren, opened the floodgates. Law enforcement seized the opportunity to


begin stopping motorists for pretextual reasons with impunity17. And if the real
reason for the stop has nothing to do with the legal basis for the stop, can anyone
expect law enforcement to ensure their actions are reasonably related to the
circumstances justifying the stop?
The second major critique of Whren is the almost limitless discretion
afforded law enforcement to engage in pretextual stops. Ochoa, 146 N.M. at 3839. Traffic codes are so extensive in their regulation that is has been said that
virtually the entire driving population is in violation of some regulation as soon as
they get in their cars, or shortly thereafter. Id. (citing State v. Ladson, 138
Wash.2d 343, 979 P.2d 833, 842 n. 10 (quoting Peter Shakow, Let He Who Never
Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v.
United States, 24 Am. J. Crim. L. 627, 633 (1997))). Since driving is an everyday
occurrence we are all subject to what feels like the power of a general warrant.
The New Mexico Court of Appeals put it very saliently:
[G]iven the pervasiveness of minor [traffic] offenses and the ease
with which law enforcement agents may uncover them in the conduct
of virtually everyone, [the requirement of a traffic violation] hardly
matters, for there exists a powers that places the liberty of every
man in the hands of every petty officer, precisely the kind of
arbitrary authority which gave rise to the Fourth Amendment.

17

Hence, in Iowa we have two Iowa State Patrol Criminal Interdiction


Teams whose admitted purpose is to engage in pretextual traffic stops to generally
investigate what, if any, criminal activity a motorist might be up to.

20

Id. at 39 (citing State v. Bolton, 111 N.M. 28, 33, 801 P.2d 98, 103
(Ct. App.1990) (alteration in original)(quoting 1 Wayne R. LaFave,
Search and Seizure, 1.4(e), at 95 (2d ed. 1987)).
2.

Article 1, Section 8 Prohibits Pretextual Stops.

Justice Appel noted in his dissent in State v. Harrison, _____ F.2d_____


(Iowa 2014), whether Whren is good law under the Iowa Constitution is still an
open question. Mr. Pardee argues Article 1, Section 8 affords citizens greater
protections.
The problem with pretextual traffic stops is that the officer is not stopping
the driver to enforce the traffic code but to conduct some other unrelated
investigation, the justification for which is absent. As the Washington Supreme
Court put it,
We begin our analysis by acknowledging the essence of this, and
every, pretextual traffic stop is that the police are pulling over a
citizen, not to enforce the traffic code, but to conduct a criminal
investigation unrelated to driving. Therefore, the reasonable
articulable suspicion that a traffic infraction has occurred which
justifies an exception to the warrant requirement for an ordinary
traffic stop does not justify a stop for criminal investigation.
Ladson, 138 Wash.2d at 349. The true reason for the stop cannot be
constitutionally justified.
the problem with a pretextual traffic stop is that it is a search or
seizure which cannot be constitutionally justified for its true reason
(i.e., speculative criminal investigation), but only for some other
reason (i.e., to enforce traffic code) which is at once lawfully
sufficient but not the real reason. Pretext is therefore a triumph of

21

form over substance; a triumph of expediency at the expense of


reasonsPretext is result without reason.
Such is the dissents ultimate dilemma: How can this court articulate
an exception to the warrant requirement based upon reasonable
necessity when the warrant is avoided, not for a reason which would
justify the warrantless investigatory stop, but upon a pretext of form
lacking connection to a reasonable, articulable suspicion of criminal
activity which would justify the exception to the warrant requirement
in the first place? Essentially the dissent suggests the search is not
justified by the pretextual stop but by the independent grounds
discovered at the stop, claiming, once the initial stop is made, there
may be other justification to detain or search independent of the traffic
or equipment violation which justified the initial stop. Of course, the
dissent presumes its conclusion by assuming the initial pretextual stop
was justified which is exactly the problem raised in this case. Even
under the Fourth Amendment an investigatory stop for a traffic
infraction (Terry stop) is proper only under the Fourth Amendment is
the officers action was justified at it inception. Only after that do we
consider scope
Id. at 351 (citations omitted). The Washington Supreme Court concluded that
Article 1 Section 7 of its Constitution:
forbids the use of pretext to justify a warrantless search or seizure
because our constitution requires we look beyond the formal
justification for the stop to the actual one. In the case of pretext, the
actual reason for the stop is inherently unreasonable, otherwise the use
of pretext would be unnecessary.
Id. at 353.
The Iowa Supreme Court is unafraid to give teeth to the Iowa Constitution.
As Chief Justice Cady recently noted,
Our Iowa Constitution, like other state constitutions, was designed to
be the primary defense for individual rights, with the United States
Constitution Bill of Rights serving only as a second layer of

22

protection, especially, considering the latter applied only to actions by


the federal government for most of our countrys history.
Mark S. Cady, A Pioneers Constitution: How Iowas Constitutional History
Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and Civil
Liberties, 60 Drake L.Rev. 1133, 1145 (2012). Justice Appel noted in his
concurrence in State v. Baldon, that the Iowa Constitution emphasizes rights over
mechanics. Baldon, 829 N.W.2d 785, 810 (Iowa 2013)(citations omitted). That
same concurrence thoroughly discusses our Supreme Courts long history of
holding that Iowans are entitled to greater freedoms and greater protections under
the Iowa Constitution than they are as citizens of the United States. Id. at 803-35.
In fact, as far back as 1902 Article 1, Section 8 has been interpreted as
affording more protections than the 4th Amendment. Iowa developed adopted the
exclusionary rule in 1902, twelve years before the United States Supreme Court.
See, State v. Cline, 617 N.W.2d 277, 286 (Iowa 2000)(citations omitted). In State
v. Cline, Iowa rejected the federal good faith exception to the exclusionary rule
under Article 1, Section 8. Id. at 292-293. Other decisions interpreting Article 1,
Section 8 more broadly than the 4th Amendment include State v. Ochoa, 792
N.W.2d 260 (Iowa 2010); State v. Pals, 805 N.W.2d 767 (Iowa 2011); State v.
Baldon 829 N.W.2d 785 (Iowa 2013). These decisions have sought to develop a
search and seizure jurisprudence that prevents arbitrary exercise of government
power and to ensure the guaranty that Article 1, Section 8 receives a broad and

23

liberal interpretation for the purpose of preserving the spirit of constitutional


liberty. Baldon, 298 N.W.2d at 823 (Appel J. concurring); Cline, 617 N.W.2d at
285.
Whren defines the 4th Amendment on this issue. In determining whether
Iowa should follow Whren, the Court should evaluate the soundness of the
Supreme Courts analysis because, if precedent is to have any value it must be
based on a convincing rationale. Cline, 617 N.W.2d. at 285. The Court should
also determine whether Whren is consistent with the spirit of Article 1, Section 8.
Id.
Whrens analysis has been roundly criticized by legal scholars. Ochoa, 146
N.M. at 37-38. Its rationale is inconsistent with over thirty years of prior Supreme
Court jurisprudence and has proved wholly unconvincing over time.
Moreover, Whren is inconsistent with the values of a broad and liberal
interpretation which preserves the spirit of constitutional liberty in Iowa. Whren
actually places an emphasis on mechanics instead of on rights, on form over
substance. Our great state motto claims, Our liberties we prize and our rights we
will maintain. The probable cause/reasonable suspicion exception to the warrant
requirement is designed to protect us from the whims and unsupported hunches of
law enforcement; to preserve our liberties and maintain our rights. That purpose is
undermined when the real reason for the stop is merely an unsupported hunch. Id.

24

Whren, legitimize[s] a charade, a mockery of the legal justifications we recognize


for permitting the most common of police intrusions. Id. at 44. This is
inconsistent with how the great pioneering framers of our constitution viewed its
protections.
Finally, this case demonstrates the need for the robust protections of Article
1, Section 8. The Trooper in this case was straightforward about the reason he
stopped Pardee and Saccento; he wanted to conduct a general criminal
investigation, wholly unrelated to any traffic enforcement, to find any drugs or
money in the vehicle. The traffic stop was merely the avenue through which he
could conduct his general investigation. And since it is almost impossible to drive
without committing a traffic infraction, the Trooper new that if he caught up to the
vehicle he would find a reason to pull it over. Thus, the traffic infraction itself is
tantamount to a general seizure warrant.
This Trooper is not the only one engaging in these pretextual stops. The
Iowa State Patrol has two teams of officers whose primary mission is to engage in
pretextual traffic stops for the purpose of conducting generalized criminal
investigations based on nothing more than a mere hunch18. Mr. Pardee asks this
Court to find that Article 1, Section 8 prohibits pretextual traffic stops where the

18

Generally involving the state of license plate, the problems of which will
be discussed in the next section.

25

primary purpose of the stop is constitutionally deficient, even if other


constitutionally permissible grounds for the stop exist.
There is still the question of what test the Court might employ for
determining whether a stop is unconstitutionally pretextual. The Washington
Supreme Court in Ladson seems to have opted for a generalized totality of the
circumstances test. Id. at 358-59. In Ochoa, the New Mexico Supreme Court
developed a much more nuanced standard involving burden shifting and rebuttable
presumptions. Id. at 44-45. Pardee asserts that whatever test the Court adopts, the
traffic stop in this matter will fail. The Trooper admitted the stop was pretextual.
The Trooper indicated his reasons for the stop were the out-of-state license plate
and some general observations of the vehicle and its occupants. Taken together
none of the Troopers observations even give rise to a hunch of criminal activity let
alone some constitutionally sufficient reasonable suspicion or probable cause. This
case is not close and the stop would fail under any test.
B.

Trooper Vanderwiel Violated Mr. Pardees Right To Interstate


Travel By Purposefully Targeting Mr. Pardee For A General
Criminal Investigation Because His Vehicle Had An Out-of-State
License Plate In Violation Of The 14th Amendment And Article 1
Section 6.
1. The Fundamental Right to Travel.

In 1966 the United States Supreme Court recognized a fundamental, federal


right to interstate travel. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170,

26

1178, 16 L.Ed. 2d. 239, 249 (1966). The right to interstate travel has three
components. Formaro v. Polk County, 773 N.W.2d 834, 838-839 (Iowa
2009)(citing Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 1525, 143 L.Ed.2d
689, 702 (1999).
First, a citizen of one state may enter and leave another state. Second,
a citizen of on estate has the right to be treated as a welcome visitor
rather than as an unfriendly alien when temporarily present in another
state. Third, a citizen of on estate who elects to become a permanent
resident of another state has the right to be treated like other citizens
of the second state.
Id. (citations omitted). A right to travel analysis refers to little more than a
particular application of equal protection analysis. United States v. Hare, 308
F.Supp.2d 955, 1001 (N.D. Neb. 2004)(citations omitted). Any classification
which serves to penalize the citizens of other states violates the right to travel
unless the classification is shown to be necessary to promote a compelling
governmental interest. Id. Governmental restrictions on the right to travel must
be weighed against the necessity advanced to justify them. Id. A restriction that
burdens the right to travel too broadly and indiscriminately cannot be sustained.
Id.
In United States v. Hare a Federal District Court case out of Nebraska, the
court found that a Nebraska Trooper did not burden Hares right to travel through
Nebraska merely by keying on his out-of-state California plate. Id. Hare was
pulled over for two traffic violations. The Trooper admitted he keys on

27

California plates because he has been taught that Interstate 80 has developed into a
busy corridor for the drug trade. Id. Hare argued that the Troopers actions
violated his right to travel, but the district court disagreed concluding that while the
Trooper may key on out of state vehicles there was no evidence that the Trooper
would not have pulled over a Nebraska plated vehicle under the circumstances, nor
were any statistics offered showing the ratio of in-state vs. out-of-state plated
motorists Trooper Pelster stops. Id. Based on the record the district court was
unable to conclude that Hare had shown his vehicle was stopped because of its
California plates, that the presence of California plates was a factor in stopping the
vehicle or that the Troopers practice of keying on California vehicles broadly and
indiscriminately burdened their right to travel through Nebraska. Id. In this matter
there is sufficient evidence from which the Court can conclude that Pardee and
indeed all out-of-state plated motorists right to travel through Iowa and right to be
treated as a welcome visitor has been burdened.
2. Mr. Pardees California License Plate Was The Determining
Factor in Trooper Vanderwiels Decision to Stop Mr. Pardee.
Firstly, it is unquestionable that Trooper Vanderwiel stopped the vehicle
because of the California plates and that the California plate was a factor, if not the
determining factor, in the Troopers choice to stop Pardee. Two Criminal
Interdiction Teams stalk Iowa. (A32). One team stalks western Iowa and the other
eastern Iowa. Id. Five State Troopers stalk the east. Id. Criminal interdiction is a

28

special assignment within the Iowa State Patrol. (A22). Its purpose is to, Look
for any types of criminal activity that are that is going up and down Interstate 80
where we primarily work. Most often we become involved with large amounts of
drugs or drug money. Id. at A24-25. The Trooper testified that he looks for outof-state license plates from the southwest, west, and eastern United States because
they are likely to be carrying drugs or drug money. Id. at A33-34; A174. As a
member of the interdiction team he looks for out-of-state plates to stop.
Q. Right. And so in particular, as a member of the interdiction detail, youre
looking -- you are youre out there looking for drug source state plates or
money sour states, money source state plates; correct?
A. Yes.
Q. And thats because those particular plates are more likely to be engaged
in some form of criminal activity. Maybe drug smuggling or some other
form of criminal activity; correct?
A. Yes. For what I do.
Id. at A34. As to Pardees specific California plate:
Q. Youve mentioned specifically that you observed a silver plate a silver
vehicle with a California license plate. Based upon your training and
experience in criminal interdiction, what is the significance of a Californiaplated vehicle?
A. California were getting a lot of marijuana coming out of there right now.
Q. And why is it significant what else is significant about that vehicle to
you.
A. Just the California plates. Its been very, very good for us.
Id. At A26-27. After observing the vehicle, the Trooper decided to stop it.
Q. What did you do after making the initial observations of the vehicle, the
silver vehicle that you previously described?
A. I pulled out and caught up to it.
Q. Why?

29

A. Because I wanted to take a closer look at it and see if I would be able to


stop it.
(A174, Pg 44 Lns 1-7). The Trooper does not hide the real reason he stopped
Pardee; to investigate the California plated vehicle for drug activity.
Q. But I guess what Im saying is the criminal -- the traffic stop for Mr.
Pardee and Saccento was really just the avenue through which you could
conduct a criminal interdiction investigation; correct?
A. Yes.
(A42). The fact that Pardee was in a California plated vehicle was the predominant
factor in the Troopers decision to stop the vehicle.
3. Trooper Vanderwiels Actions Actually Burdened Mr.
Pardees Fundamental Right to Interstate Travel By Creating
A Barrier And An Unwelcome Environment.
Next, the warning and citations entered at the hearing in the forfeiture matter
in conjunction with the Troopers testimony at the motion to suppress in the
criminal and forfeiture hearings, prove the Interdiction Teams, and Trooper
Vanderwiel, have created an actual burden on the right of out-of-state vehicles to
travel through and Iowa and feel welcome in doing so.
First, the interdiction teams target out-of-state plated vehicles. Trooper
Vanderwiel admits this and his warnings19 and citations support it. From August
2008 until July 2012, Vanderwiel wrote 2,342 warnings and citations; mostly

19

Unlike the Nebraska State Patrol in Hare, the Iowa State Patrol does keep
records which reveal the license plate data for all warning citations.

30

warnings. (A132-162). Of the 2,342, 350 were issued to Iowa vehicles. Id. 1,992
were issued to out-of-state-plated vehicles. Id. Trooper Vanderwiel conducted
roughly 85% of his traffic enforcement on out-of-state plated vehicles. Id.
If the citation and warning data is examined closely, it is clear that Trooper
Vanderwiel began his interdiction assignment in November 2008. Id. The data for
August, September and October 2008, reveals that almost half the Iowa plated
warnings and citations were written in those three months. Id. Additionally,
comparable numbers of warnings to citations were written. In November of 2008,
the number of citations plummeted. The Trooper testified to the significant of
warnings:
Q. But if its an out-of-state-plate thats maybe got a taillight out or
something like that, youre probably going to write them a warning citation;
is that correct?
A. Yes.
Q. And thats particularly significant for your purposes, your interdiction
purposes, because informing the person that theyre going to get a warning
citation in your view should then lessen their overall nervousness; correct?
A. Yes, usually.
(A36).
Additionally, the ratio of warnings and citations written to out-of-stateplated vehicles compared to Iowa-plated vehicles rises dramatically. These facts
are consistent with Trooper Vanderwiels testimony that he joined the interdiction
team about the fall of 08. (A22). Excluding August, September and October
2008, Trooper Vanderwiel wrote 2069 warnings and citations as a member of the

31

interdiction detail. 167, or about 8%, were written to Iowa-plated vehicles. 1902,
or about 92%, were written to out-of-state-plated vehicles. Multiplied by two
Interdiction Team and thousands, possibly tens of thousands of out-of-state
motorists are being subjected to pretextual stops.
Additionally, the State offered Trooper Vanderwiels successful drug and
cash seizures. (A185-189). Trooper Vanderwiel testified that he would not be
surprised if none of the seizures involved an Iowa license plated vehicle because:
Q. Because your you typically are not stopping in-state license plates for
interdiction activities; correct?
A. Correct.
(A50). Even worse, the Trooper admitted that at least one-hundred times, if not
more, during his interdiction investigations he actually searched the motorists
vehicle and found no evidence of criminal activity.
Q. But youve also testified that there were at least a hundred, probably
more, times when you engaged in these interdiction investigations and you
didnt find anything?
A. Yes.
Q. And searches were conducted?
A. Yes.
Q. Yes. And many of the factors that weve discussed here today were
present in those cases, werent they.
A. I believe so, yes.
Id. at A71.
The testimony reveals and records support that thousands of out-of-state
motorists are being systematically targeted by Iowa State Troopers as they travel

32

through Iowa and that hundreds of them, by Trooper Vanderwiel alone, have been
subject to the humiliation of road-side searches. It strains the mind to think of
many things the State of Iowa could do to be more unwelcoming to citizens of the
other United States, than to stop them as they travel through and subject them to
such humiliation.
4. States Lack Of Compelling Justification For The Burden On
The Right To Interstate Travel.
The State did not specifically offer any justification during the many
hearings to justify the burden their actions place on the right to travel. Much was
made of the fact that the interdiction teams are designed to ferret out drug activity
on Interstate 80. Perhaps the need to stop such activity is compelling but even if it
is, it does not overcome the burden to interstate travel in this case20. The resume of
successful seizures the State offered contained 65 seizures. (A185-189). The
Trooper testified that he had participated in another 12 since that list had been
compiled for a grand total of 77 successful seizures. (A25). In the same time
period, the Trooper issued 1902 warnings and citations to out-of-state plated
motorists. He also conducted at least one-hundred, and likely more, searches of
out-of-state plated vehicles which resulted in no evidence of criminal activity. His
search-success rate is below 50%. Trooper Vanderwiel and his colleagues

20

Mr. Pardee does not concede this interest is compelling. Additionally, it


would have been up to the State to assert this interest at the hearing or in briefing.

33

actions, considered in light of the minimalistic nature of their success in


comparison to the sheer volume of motorists they target, stop, investigate and often
humiliate through roadside searches, are too broad and too indiscriminate to justify
even the weighty goal of curbing the flow of drugs through Iowa. Trooper
Vanderwiel impermissibly targeted Mr. Pardee because he was an out-of-state
plated motorist in and all evidence obtain as a result should be suppressed.
C.

The Trooper Unlawfully Expanded The Scope Of The Stop For


Following Too Closely And Having A Taillight Out By
Conducting A Criminal Interdiction Investigation Designed To
Detect Unrelated Criminal Activity For Which Mr. Pardee Could
Not Have Been Stopped In The First Place.

Pardee argues that suppression is warranted because the Trooper unlawfully


expanded the scope of the traffic stop without reasonable suspicion or probable
cause. In State v. Pals, 805 N.W.2d 767, 775-777 (Iowa 2011), the Court notes
that there is still a considerable amount of controversy regarding the proper scope
and duration of law enforcement action during a routine traffic stop. However,
there are a handful of Iowa appellate decisions which are helpful in understanding
how Iowa has dealt with this issue.
In State v. Aderholdt, the Iowa Supreme Court said that during the execution
of a lawful traffic stop an officer may conduct an investigation reasonably related
in scope to the circumstances which justified the interference in the first place.
State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996)(citations and internal quotes

34

omitted). This reasonable investigation includes asking for the driver's license
and registration, requesting that the driver sit in the patrol car, and asking the
driver about his destination and purpose21. Id. at 563-64 (emphasis
added)(citations and quotes omitted).
In State v. Scanlon, an unpublished opinion of the Court of Appeals, the
Court said the following:
A traffic stop is more analogous to an investigative detention
than a custodial arrest, and the United States Supreme Court
and our supreme court treat a traffic stop based on probable
cause or reasonable suspicion under the standard set forth in
Terry v. Ohio, 392 U.S. 1, 19 (1968). See Berkemer v. McCarty,
468 U.S. 420, 439 (1984); Pals, 805 N.W.2d at 775. Terry
emphasized that the scope of the search must be strictly tied to
and justified by the circumstances which rendered its initiation
permissible. Pals, 805 N.W.2d at 775 (internal quotation
marks omitted).
As a result, under traditional application of the exclusionary
rule, evidence may not be introduced if it was discovered by
means of a seizure and search which were not reasonably
related in scope to the justification for their initiation. Id. at

21

The genesis of the rule allowing an officer to question a driver as to his


destination and purpose appears to be United States v. Barahona, 990 F.2d 412,
416 (8th Cir. 1993). In Barahona, the driver was stopped for erratic driving, and the
officer asked about destination and purpose only after the driver stated that he was
tired. The 8th Circuit found the question of destination and purpose to be
reasonably related to the purpose of the stop because it was reasonably related to
ascertaining the drivers erratic driving and whether he posed a danger to others
on the road. Id. Thus, it appears the rule approved in Aderholdt, which allows an
officer to ask the destination and purpose of a driver, was not intended to make
such questions reasonable per se. Rather, these questions still must be reasonably
related to the purpose of the stop.

35

77576 (quoting Terry, 392 U.S. at 29). A valid traffic stop


may become unlawful if it is prolonged beyond the time
reasonable required to complete [its] mission. Florida v.
Royer, 460 U.S. 491, 500 (1983). This means the seizure must
be limited both in scope and duration. Id. So long as inquiries
unrelated to the traffic stop do not measurably extend the
duration of the stop they do not run afoul with the constitution.
Arizona v. Johnson, 555 U.S. 323, 333 (2009).2 Here, the issue
relates to the scope of the seizure, although if the scope or
authority of the officer is exceeded, the duration of the seizure
is unlawful.
State v. Scanlon, 829 N.W.2d 589 (Iowa Ct. App. 2013). The scope and duration
of the traffic stop are interlocking components. The Court should consider what
would have occurred and for how long, if the stop were truly a traffic enforcement
action, versus what actually happened and how long it actually took.
Additionally, in State v. Bergmann, the Iowa Supreme Court made clear that
when the purpose for the initial stop has concluded, to continue to detain the
suspect and/or expand the scope of the stop, reasonable suspicion of criminal
wrongdoing must be present. Id., 633 N.W.2d 328, 337 (Iowa 2001)22. Further,
the suspicion of wrongdoing must be derived from conduct and observations
made prior to the decision to broaden the investigation. State v. Nadler, 705

22

But see State v. Smith, 683 N.W.2d 542 (Iowa 2004) holding that
passenger was not seized and his Fourth Amendment rights were not violated when
after the conclusion of the traffic stop the officer asked him for his identification
and ran a warrants check.

36

N.W.2d 107, 2005 WL 1630004, at *3 (Iowa Ct. App. 2005)(citing Alabama v.


White, 496 U.S. 325 329 (1990)).
Other state courts have looked at whether an officer may ask motorist
questions, such as destination and purpose, which are unrelated to the traffic stop.
In many of these cases, the courts have generally held that questions that are
unrelated to a traffic stop are not permissible and are violations of the respective
state constitutions when the officer asks investigatory questions without reasonable
suspicion. See OBoyle v. State, 117 P.3d 401 (Wyo. 2005); State v. Estabillio,
218 P.3d 749 (Hawaii 2009); State v. Rodgers, 227 P.3d 695 (Or. 2010);
Commonwealth v. Torres, 674 N.E.2d 638, (Mass. 1997); State v. Fort, 660
N.W.2d 415, (Minn. 2003); State v. Cunningham, 954 A.2d 1290, (Vt. 2008).
In this case, the Trooper decided pre-stop that he was going to conduct an
investigation unrelated to the traffic infractions. (A46). Thus, the purpose of the
stop was broadened at its inception and well before any claim of probable cause or
reasonable suspicion for such broadening could be made.
Moreover, if the Trooper had not been conducting an interdiction
investigation his focus would have been on writing the citations. (A37). Instead, he
testified that most of the actions he took during the stop were not related to the
traffic enforcement but were in fact related to his interdiction investigation. (A6067; A199-221; Vid. 9:30:25 9:57:15). The Trooper testified that to fill out the

37

warnings Saccento did not need to sit in his vehicle, he did not need to speak with
Pardee, he did need to run a background check and that he could have scanned the
drivers license into his computer instead of writing the citations out manually.
Those actions were all taken to further the interdiction investigation. (A37-41, 60,
66-67). The Troopers actions admittedly exceeded the scope of the stop.
Moreover, the Trooper initially stopped Pardee at 9:31:00. (Video). The dog
sniffed the vehicle spanned at 10:01:44, thirty minutes23 later. The Trooper agreed
that if he was not engaged in the interdiction interview he could have written the
warning citations more quickly. (A68). In fact, the Trooper admitted that he
previously testified it would have taken him only about five minutes to complete
the warning citations if that was the real purpose for which he stopped the vehicle.
Id. at A40.

If he had scanned Saccentos drivers license, the warning would have

taken even less time to fill out. Id. at A39-41. After hedging on the times, the
Trooper concluded that stop would have taken ten to twelve minutes if he had just
pursued writing the warnings. Id. A42. This stop took two and a half times as
long to complete because of the Troopers interdiction activities. Trooper
Vanderwiels out of scope actions unconstitutionally prolonged the detention way
beyond the time reasonably required to complete its purpose.

23

The span from when the stop occurred till when the Trooper gave Mr.
Saccento the warning citations was only slightly shorter from 9:31:00 9:55:32, or
24 minutes.

38

This case is remarkably similar to United States v. Peralez, 526 F.3d 1115
(8th Cir. 2008). The question presented in Peralez, was whether the Troopers
blended process of conducting a drug interdiction investigation during the course
of a run-of-the-mill traffic stop violated the Fourth Amendment. Id. at 1120. The
Court answered the question in the affirmative. In Peralez, the traffic stop lasted
for sixteen minutes. Id. at 1119 -1120. Three minutes into the stop the Trooper
began his interdiction investigation. Id. The interdiction investigation included
interspersing drug interdiction questions with the routine processing of a traffic
stop arising from an obstructed license plate. Id. at 1120. The Trooper also,
admitted at the suppression hearing that he ask[ed] questions unrelat[ed] to the
stop, and that those questions prolong[ed] the detention. Id. The 8th Circuit found
that, the stop was delayed because of the troopers drug interdiction questioning,
not because of anything related to the investigation or processing of the traffic
violation. Id. The Court concluded:
We need not decide whether a brief extension would comport with the
Fourth Amendment in the context of a probable-cause stop, because
the delay caused by Trooper Schlueter's questions cannot be
categorized as brief.Here, Trooper Schlueter engaged in a blended
process of conducting a routine traffic stop and a drug interdiction
investigation. The off-topic questions more than doubled the time
Peralez was detained. The video recording of the traffic stop makes
clear the questions unrelated to the traffic violation constituted the
bulk of the interaction between the trooper and the van's occupants.
This was not a brief extension. The extent and duration of the
trooper's focus on non-routine questions prolonged the stop beyond
the time reasonably required to complete its purpose. Caballes, 543

39

U.S. at 407, 125 S.Ct. 834. This violated Peralez's Fourth Amendment
right to be free from unreasonable seizures.
Id. at 1121. This case is virtually no different. Trooper Vanderwiel unreasonably
exceeded the scope of the stop and prolonged the detention of Pardee. Any
evidence derived from this unreasonable seizure should have been suppressed.
D.

Based On The Totality Of The Circumstances The Trooper Did


Not Have Reasonable Suspicion To Continue To Detain Mr.
Pardee.

Reasonable suspicion exists if the State can show by a preponderance of the


evidence that the officer had specific and articulable facts, which taken together
with rational inferences from those facts, would lead him to reasonably believe
criminal activity has occurred. State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004)
(citations omitted). Mere suspicion, curiosity, or hunch of criminal activity is not
enough. Id. (citations omitted).
In determining whether reasonable suspicion exists to expand the scope of
the investigation, it is helpful to consider four Iowa cases. In Nadler, the court
upheld suppression concluding the following factors were not sufficient to
establish reasonable suspicion:
1.
2.
3.
4.
5.

The defendant exhibited unusual speech and breathing patterns.


The defendant was fidgety.
The defendant was tapping his fingers.
The defendant was bouncing his leg.
The defendant refused to make eye contact during conversations with the
officer.
40

6. The defendant kept asking about whether cell phone use while driving
was legal in Iowa.
7. The defendant was unable to provide a concrete itinerary for his trip.
Id. at *3-4.
In finding a lack of reasonable suspicion based on these factors the Nadler
court made two important observations. First, little significance attached to the
defendants nervousness because a reasonable motorist may become disconcerted
when subjected to extensive questioning and a criminal background check
following the issuance of a simple traffic warning. Id. at *4. Second, an
incomplete travel itinerary is not unusual because a reasonable motorist might not
feel compelled to divulge an exacting description of his travel itinerary in response
to [an] investigation of a relatively minor traffic violation. Id.
In State v. Nikolsky, the court upheld the suppression of evidence based
upon the finding that the following factors did not establish reasonable suspicion to
expand the investigation of a traffic stop:
1.
2.
3.
4.
5.
6.
7.

The defendant had California license plates.


The defendant was driving from California to the east coast.
The defendant had a snow board and duffel bag in the back seat rather
than in his trunk.
The defendant was unable to recall where he had started driving from
that day.
The defendant was wearing shorts and a short-sleeved shirt.
The defendant was not the primary renter, but was an additional
driver.
The defendant had a number of keys on his key chain other than the
key to the rental car.
41

8.
9.
10.
11.
12.

The defendant was planning to visit his grandmother, but did not
know her age.
There was trash on the floor of the rental car.
The defendant lowered his passenger window only 3-4 inches to talk
to the officer.
The defendant locked his car when he got out of it.
The defendants carotid artery pulsed, his hands were shaky, and he
became agitated.

796 N.W.2d 458, 2004 WL 151070, at * 8 (Iowa Ct. App. 2004).


The court of appeals concluded that the above-cited factors simply did not
provide reasonable suspicion. The court stated
Substantively, the facts used to justify the second detention may
support a hunch, but they did not rise to the level of reasonable
suspicion. People drive rather than fly from the west to the east
coast, and they rent cars to drive for legitimate purposes. It is not
inherently suspicious to place luggage, including a snowboard,
in the back seat; to be unable to recall one's stopping and starting
points on a cross-country trip; to wear travel clothing unsuited to
the weather; to be an alternate driver on a car rental agreement;
to attach rental keys to a keychain; to be unaware of one's
grandmother's age; to have food wrappers on the floor of a car;
to fail to look at a patrolman; to lower a window partway in
speaking to an officer; to lock a car upon leaving it; or to be
nervous or agitated during traffic stops, especially if they are
prolonged.
Id. at *9.
In State v. Hanrahan, the Court of Appeals found that Trooper Vanderwiels
reliance on the following factors did not give him reasonable suspicion of criminal
activity:
1.

The fact that Mr. Hanrahan was traveling to California, an alleged


drug source state.
42

2.
3.
4.
5.
6.

The fact that Mr. Hanrahans vehicle contained a cooler, food and
maps indicative of long travel.
General nervousness even in the face of a warning citation.
Leaving the vehicles turn signal on.
The fact that Mr. Hanrahan volunteered information.
The fact that Mr. Hanrahan paused before answering questions.

Hanrahan, 838 N.W.2d 868, 3 (Iowa Ct. App. 2013)(unpublished opinion).


In Bergmann, the Iowa Supreme Court found that evidence should not be
suppressed in light of the following factors:
1.
2.
3.
4.
5.
6.

The defendant was spotted in a known drug area.


The defendant was accompanied by a well-known nefarious drug
dealer.
When the drug dealer spotted police he immediately retreated from
the defendants vehicle.
The officer in question recognized the defendant from a past arrest on
drug and weapons charges.
The defendant lied about where he had just been, and the officer had
first-hand knowledge of such as he had witnessed the defendants
prior whereabouts.
The defendant acted nervous once outside the vehicle.

633 N.W.2d at 333.


Reasonable suspicion cannot arise from a combination of wholly innocent
factors unless there are concrete reasons for interpreting the combination of factors
as being suspicious. United States v. Beck, 140 F.3d 1129, 1138 (8th Cir. 1998)
(citations and quotes omitted). Likewise, nervousness is generally not sufficient to
supply reasonable suspicion that criminal activity had occurred. It certainly
cannot be deemed unusual for a motorist to exhibit signs of nervousness when
confronted by a law enforcement officer. Beck, 140 F.3d at 1139; see also United

43

States v. Barron-Cabrera, 119 F.3d 1454, 1461 (10th Cir. 1997); United States v.
Wood, 106 F.3d 942, 948 (10th Cir. 1997).
In this case, the Court relied on 16 factors justifying Trooper Vanderwiels
detention of Pardee for a drug dog sniff of the vehicle. (A99-102). First, however,
a word about the Troopers training. The Trooper testified he has attended a long
list of training courses totaling over 100 hours. (A23-24, 172-173). In all of said
training, however, the Trooper admitted that he is not aware of a single study or
piece of empirical evidence which supports the concepts he learned. (A48-49, 71).
The Trooper even admitted that one of his training courses was made up from
scratch by a retired police officer. Id. at A49. If the Trooper himself cannot cite to
one study which supports his over 100 hours of training, then all of his trainingbased reasons for suspicion should be viewed skeptically. The need for such
skepticism could not be better illustrated than through the following exchange:
Q. And this -- then you also noticed that the vehicle had what I believe the
term is a lived-in look?
A. Yes.
Q. And thats a term of art you learn in you training; correct?
A. Yes.
Q. And that tends to refer to cars that have a lot of food and drink items or
other things scattered about them; correct?
A. Yes.
Q. And that you said is indicative of long travel?
A. Correct.
Q. Which, Mr. Saccento and Pardee in this case were, in fact, engaged in
long travel; correct?
A. Correct?

44

Q. They also teach you in your interdiction training that vehicles that are
spotless are also suspicious, arent they?
A. Yes.
Q. So, again, damned if you do, damned if you dont; correct?
A. Could be.
Id. at A50-51.
That said, the first seven of the sixteen factors all included observations of
the vehicle and its occupants prior to the stop. Those factors include, 1) California
license plates, 2) driver of the vehicle had his hand over his face as he drove by
Trooper Vanderwiel, 3) the driver did not make eye contact, 4) the car was
traveling five miles under the speed limit, 5) the driver had his hands at the 10 and
2 position on the steering wheel, 6) taillight was not working, 7) the car followed
to closely behind a semi. Id. The fact that a car has California license plates does
not indicate anything about potential criminal activity. As the Court said in
Hanrahan,
In any event, the trooper painted with a broad and unconstitutional
brush in suggesting that travelers to or from the State of California
must be engaged in drug smuggling. See United States v. Beck, 140
F.3d 1129, 1138 (8th Cir.1998) ([W]e do not think that the entire
state of California, the most populous state in the union, can properly
be deemed a source of illegal narcotics such that mere residency in
that state constitutes a factor supporting reasonable suspicion.).
Id. 838 N.W.2d at 3.
The hand over face observation was meaningless because:

45

Q. The first thing you said I think that you witnessed is that the driver of
the vehicle, who I believe was Mr. Saccento, put his hand in front of his face
as he passed you; is that correct?
A. He already had it up. I didnt see him put it there.
Q. So you dont have any idea if he was wiping a booger off his nose, do
you?
A. Nope.
(A42-43).
Next, the Trooper claimed that by apparently keeping his eyes on the road in
front of him, travelling at a safe speed and placing his hands safely on the steering
wheel, Saccentos driving was suspicious. The Trooper reasoned that this behavior
occurs when people are trying hard not to get caught by the police. Id. at A44-45.
No person wants to be stopped by the police, criminal activity or not.
In any case, that rationale is seriously undercut by the next two factors cited
by the Court. Having a non-working taillight and following a semi too closely will
get you stopped by a State Trooper. Aside, from blowing up the alleged
suspiciousness of factors 3-5, it is unclear how the two traffic infractions lend to a
reasonable suspicion of other criminal activity.
Reasons 8-16 occurred post stop. They are equally unavailing. Observation
8 has been termed auditory exclusion. Supposedly, leaving a turn signal on during
the stop indicates nervousness to a degree that one cannot hear their turn signal.
Id. at A47-48. No medical or empirical evidence was offered that this alleged
condition actually exists and it falls in the general category of nervousness which

46

courts have long held is completely normal during a stop. The same can be said
with regard to observations 11-14 cited by the Court. Pardee also argues that a
review of the video-tape both visually and audibly does not reveal any extreme
nervousness on the part of Saccento or Pardee24. Additionally, as to factor 14, the
allegedly pulsating carotid artery, the Trooper indicated he has had never met Mr.
Pardee or Mr. Saccento before and had no medical information on them25. Id. A29,
52-53.
Factor 9, the lived-in look, means little because as discussed, clean or messy
the Trooper finds it suspicious. As in Hanrahan, If these circumstances were
indicative of suspicious activity, a substantial portion of the public would be
subject each day to an invasion of its privacy. Id. 838 N.W.2d at 3 (citations
omitted). The same is true for factor 10. Air fresheners are in many vehicles for a
host of reasons.
This leaves factors 15 and 16. Factor 15 is the alleged confusion over travel
plans. Mr. Pardee argues that a close review of the video and video transcript does
not reveal any major inconsistencies or unexplainable items in their travel plans.

24

Being forced to sit in a police cruiser, regardless of whether a warning or


citation is going to be issued would likely cause someone to be extremely nervous
since a police cruiser is usually reserved for the police and their arrestees.
25
It could be that they have high blood pressure and any amount of
nervousness would cause visible pulsation in the carotid artery. However, Mr.
Pardee questions whether it is even possible for a persons heart to beat so hard
that you could actually visibly see a pulse in the neck.

47

The problem, if any, stems from the Troopers purposeful unwillingness to clarify
with Mr. Pardee or Mr. Saccento any alleged inconsistencies he perceived in their
travel plans. (A59). The Trooper also conceded that any inconsistencies were not
serious. Id. Nadler instructs that motorists are not required to reveal the intimate
details of their travel plans during a routine traffic stop. The fact that the costeffectiveness of the trip did not make sense to the Trooper is also irrelevant.
People make poor financial decisions all the time. And of course on this front the
Trooper made no attempt to clarify either.
Lastly, though Mr. Pardee had a prior minor possession of marijuana charge
in his background the Trooper could not remember whether it resulted in a
conviction or not. Id. at A70. A prior minor drug offense at most lends to a hunch
of criminal activity. See Scanlon, 829 N.W.2d at 4.
These factors taken as a whole do not give rise to articulable reasonable
suspicion of criminal activity. At most they give rise to a generalized suspicion of
criminal activity. See Hanrahan, 838 N.W.2d at 3. Trooper Vanderwiel conceded
as much:
Q. And this suspicion of criminal activity could have been drugs, smuggling,
could have been credit card fraud. It was some type of criminal activity
based their answers to your questions and their actions; correct?
A. Yes.
(A69). Additionally, Trooper Vanderwiel noted that on hundreds of occasions
where similar factors were present he detained and searched vehicles and found no

48

evidence of criminal activity. Id. at A71. This cuts like a dagger through the
assertion that these factors rise to anything more than a hunch of criminal activity.
The sixteen factors cited by the Court and Trooper Vanderwiel are perhaps
sufficient to raise a hunch of criminal activity but do not rise to the level of a
reasonable articulable suspicion. Thus, any and all evidence derived directly or
indirectly from the unlawful detention of Mr. Pardee should have been suppressed.
E.

The Trooper Did Not Have Probable Cause To Search Mr.


Pardees Vehicle Because The State Failed To Prove The Drug
Dog Well-Trained And Reliable.
1. The Dog Was Unreliable Under The Test In Florida v. Harris

The Supreme Court requires drug dogs to be well trained. Illinois v.


Caballes, 543 U.S. 405, 409 (2005)(citing U.S. v. Place, 462 U.S. 696, 707
(1983)); Florida v. Harris, 133 S.Ct. 1050 (2013). Reliability is determined by the
totality of the circumstances surrounding the dog and sniff. Harris, 133 at 1057.
Pardee argues Trooper Bakers dog was not reliable.
Trooper Baker was questioned about the training methods and evaluation
process for his dog. He was consistently unable to explain the methodology or
evaluation procedures. (A78-89, 98). Trooper Baker was asked what he believed
to be his K-9s accuracy rate but was unable to give the Court any indication as to
how accurate his dog was in detecting the presence of narcotics. (A95). He also
claimed that his K-9 could detect the odor of narcotics from narcotics previously

49

present in a place. (A91-93). That is to say his K-9 will alert when no narcotics are
actually present.
Thirdly, Trooper Baker would not admit under cross-examination
his K-9 had never actually been trained to sniff the exterior of a vehicle for the
presence of narcotics on the interior, that was the clear import of his testimony.
(A80-83). The K-9 was trained to sniff the exterior of a vehicle for drugs hidden in
the exterior of the vehicle, and trained to sniff drugs in the interior of the vehicle
by being placed in and sniffing the interior of the vehicle. Id.
Fourthly, although Trooper Baker claimed standards for his and his K-9s
training exist, the Trooper was unable to recite or provide said standards and none
were introduced into evidence. (A83-97). Thus, the Court has no way to evaluate
the training of the K-9 and Trooper Baker. Finally, Trooper Baker states that the
K-9s deployment records would assist the Court in determining whether or not the
dog is reliable. (A96-97). Those records were requested and not provided.
While the State entered a certificate and Trooper Baker claimed his dog was
well trained, he could not explain the standards for the training nor the evaluation
process. Without an explanation of the training standards and evaluation process
there is no basis to conclude the training makes the dog well trained, in particular
absent any actual field use records.

50

2. Adoption of Harris v. State Under Article 1 Section 8.


The Court decided during the criminal suppression hearing that it would not
follow the decision of Harris v. State, 71 So.3d 756 (Fla. 2011) (holding that the
State has the burden of providing all relevant documents to the court regarding the
reliability and training of a drug-sniffing dog so that the court can determine the
credibility of the dog based on the totality of the circumstances) as advocated by
Pardee. The State admitted to possessing a multitude of records, including field
records, but did not introduce those at the hearing for the Court to review in
making its reliability determination. Pardee asks the Court to adopt Harris as the
reliability test under the Iowa Constitution.
The ability to cross-examine a police officer is paramount when trying to
determine whether probable cause existed for a particular action. Crossexamination of a dog is not possible, therefore, the trial court must assess the dogs
reliability by evaluating the dogs training, certification, and performance, in
addition to the training and experience of the dogs handler. The Harris court,
stated that the correct evaluation of the reliability of a dog should be based on the
totality of the circumstances, similar to the evaluation of an informant whose
information provides the basis for probable cause. Id. at 767 (citations omitted).
In determining whether an informants information is reliable the informants track
record of accurate information becomes a critical part of the analysis. Similarly,

51

where the dog's alert is the linchpin of the probable cause analysisthe reliability
of the dog to alert to illegal substances within the vehicle is crucial to determining
whether probable cause exists. Id. The greater the reliability of the dog the more
reasonable it is to conclude that its alert indicates a fair probability that
contraband will be found. Id. (citations omitted). The only way to track the dogs
ability to give accurate information in the past, is to provide all records that show
the number of false alerts the dog has given over its career.
The Harris Court, cites a number of other reasons why accepting a dogs
reliability solely based on the fact it has been trained and certified is concerning.
Id. at 768. Chiefly, the potential of handler error, and the possibility of alerts to
residual odors. The court relies on a number of scholarly works to explain the
hazards of relying only on certification and training when determining the
reliability of a dog. Id. at 76869 (citing Andrew E. Taslitz, Does the Cold Nose
Know? The Unscientific Myth of the Dog Scent Lineup, 42 Hastings L.J. 15
(1990); Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason
L.Rev. 1 (2006); Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog:
Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb.
L.Rev. 735 (2007); Robert C. Bird, An Examination of the Training and Reliability
of the Narcotics Detection Dog, 85 Ky. L.J. 405 (1997)).

52

While all dogs and handlers working for the Iowa State Patrol are trained
and certified, that does not necessarily lead to the conclusion that all dogs are
well-trained and well-handled. Richard E. Myers II, Detector Dogs and
Probable Cause, 14 Geo. Mason L. Rev. 1, 4 (2006). It also does not suggest that
all dogs have the temperament to be narcotics dogs. Id. Some may be suggestible
and may alert unreliably. Id.
The Defendant asks this court to adopt the test in Harris v. State under
Article 1 Seciton 8 and find that the dog is unreliable. If the Court is unwilling to
adopt the Harris v. State test, Pardee asserts the dog is unreliable even under the
Florida v. Harris test.
CONCLUSION
When all of the evidence obtained either directly or indirectly as a result of
the illegal search and seizure the Court is left with very little evidence from which
to conclude that this particular property was connected to illegal drug activity.
Thus, no substantial basis existed for the forfeiture and the State did meet its
burden of proof by a preponderance of the evidence.

53

STOWERS & SARCONE PLC


West Glen Town Center
650 South Prairie View Drive, Suite 130
West Des Moines, IA 50266
Phone: (515) 224-7446
Fax: (515) 225-6215
By:

____________________________
Nicholas Sarcone
ATTORNEY FOR APPELLANT

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CERTIFICATE OF FILING
The undersigned does hereby certify that she will file Appellants Final Brief
and Argument by mailing eighteen (18) copies thereof to the Clerk of the Iowa
Supreme Court, 1111 E. Court Avenue, Des Moines, Iowa 50319 on the 26th day
of September, 2014, by mailing said documents to the clerk of the court at said
address through the United States mail with proper postage affixed thereto.
CERTIFICATE OF SERVICE
On the 26th day of September, 2014, the undersigned party served
Appellants Final Brief and Argument on all other parties to this appeal by
delivering one (1) copy to each partys counsel by mailing said documents to the
following address as shown by the pleadings on file in this matter through the
United States mail with proper postage affixed thereto.
Jean Pettinger
Assistant Attorney General
Hoover State Office Building, 2nd Floor
Des Moines, IA 50319
CERTIFICATE OF COST
The undersigned does hereby certify that the actual cost of reproducing the
necessary copies of the above and foregoing Appellants Final Brief and Argument
was $__________.

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME


LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE
REQUIREMENTS
This brief complies with the type-volume limitation of Iowa R. App. P.
6.903(1)(g)(1) because this brief contains 13,489 words, excluding the parts of the
brief exempted by Iowa R. App. P. 6.903(1)(g)(1).
This brief complies with the typeface requirements of Iowa R. App. P.
6.903(1)(e) and the type-style requirements of Iowa R. App. P. 6.903(1)(f) because
this brief has been prepared in a proportionally spaced typeface using Microsoft
Office Word 2013 in Times New Roman in 14 point font size.

STOWERS & SARCONE PLC


West Glen Town Center
650 South Prairie View Drive, Suite 130
West Des Moines, IA 50266
Phone: (515) 224-7446
Fax: (515) 225-6215
By:

____________________________
Amy Pille
Legal Assistant

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