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[T] State v. Miller8/27/2003
Miller appeals the district court's denial of his motion to suppress evidence of his intoxication. AFFIRMED.
Early one morning, an officer with the Denver, Iowa, police department noticed that a car in front of him was weaving within its lane and had an obscured license plate. The officer activated his video camera and followed the car for a period of time. The officer then stopped the car and determined driver Joshua Thomas Miller was intoxicated.
The State charged Miller with operating while intoxicated, first offense. Iowa Code § 321J.2 (2001). Miller moved to suppress the evidence of intoxication, contending the officer's stop violated his constitutional rights. See U.S. Const. amend. IV; State v Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (reaffirming that vehicle stop and temporary detention of occupants is "seizure" within meaning of Fourth Amendment). The district court denied the motion following a hearing and, on the minutes of testimony, found Miller guilty as charged.
On appeal, Miller takes issue with the district court's suppression ruling, contending: 1) there was no evidence the license plate would have been unreadable had the officer been closer, and 2) the videotape does not support the officer's testimony that he was driving erratically.
On our de novo review of the record, we conclude the obscured license plate alone furnished probable cause for the vehicle stop. See Iowa Code § 321.38. See also Whren v. U. S., 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed. 2d 89, 95 (1996) (stating, " s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."); State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996) (finding probable cause for vehicle stop based on driver's speeding and failure to wear seat belt). Although Miller reasonably argues from the evidence that the officer was simply too far away to read the license plate, the State correctly points out that Iowa Code section 321.38 does not specify a distance from which the plate must be legible. Cf. Iowa Code § 321.388 (requiring rear lamp to be placed to illuminate license plate from distance of fifty feet). Accordingly, we uphold the suppression ruling on this ground.
In the alternative, we conclude Miller's weaving, while only minimally evident on the videotape, furnished the officer with reasonable suspicion to believe he was driving while intoxicated. See State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997); State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct. App. 1993). In reaching this conclusion, we consider the lateness of the hour and the experience of the officer. See State v. Kreps, 650 N.W.2d 636, 642, 646 (Iowa 2002). We also note that not all the officer's observations of erratic driving were videotaped.
We affirm the district court's suppression ruling and Miller's judgment and sentence.
AFFIRMED.
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