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State v. Pink11/16/2001
Appeal from the Iowa District Court for Benton County, David S. Good (motion to suppress), Douglas S. Russell (trial and sentencing), Judges.
Defendant appeals from the judgment and sentence entered upon his convictions for third-offense operating while intoxicated in violation of Iowa Code section 321J.2 (1999), interference with official acts in violation of section 719.1, and failure to yield to an emergency vehicle in violation of section 321.324. REVERSED AND REMANDED.
Defendant appellant Shawn Pink was convicted of OWI third offense, in violation of Iowa Code section 321J.2 (1999); interference with official acts, in violation of Iowa Code section 719.1; and failure to yield to an emergency vehicle, in violation of Iowa Code section 321.324. He appeals, contending the district court erred in failing to suppress evidence he contends was obtained as a result of a search of his home. With respect to evidence admitted to convict defendant of OWI third offense, we reverse.
At approximately ten o'clock in the evening of July 2, 1999 Benton County Deputy Sheriff John Austin was notified by radio that a pickup truck with license plate number "904 GIM," driven by a man with a beard and baseball cap who may have been drinking, had followed a car full of teenagers to their destination, a residence at 6355 25th Avenue, and was causing a disturbance there. Information regarding the driver and the disturbance had been phoned in from the home at 6355 25th Avenue. After determining the identity of the registered owner of the vehicle, Deputy Austin parked his squad car at an intersection he believed the driver/defendant would likely pass through to get to his own home after leaving 6355 25th Avenue. Deputy Austin got out of his car to wait for the driver. Seeing the reported pickup, driven by defendant, approach the intersection and pass through it in a reasonable manner, Deputy Austin got into his car, turned on his red lights, and followed the car. According to the deputy's testimony, the defendant then sped up, so much so that he could not catch him, even at the deputy's own claimed speed of seventy miles per hour. In a further attempt to get the attention of defendant, the deputy turned on his white sweeping light. He did not activate the siren. Immediately thereafter, the pickup slowed and turned into the defendant's drive, which was about one and one-half miles from the intersection. Deputy Austin entered the driveway as well, stopped, and noticed the defendant leave his vehicle and walk up the steps of his walk-in porch adjoining the house. The deputy called out to the defendant, "Stop. I want to talk to you." The defendant looked back at the deputy and proceeded into the porch. Deputy Austin again said, "Stop. I want to talk to you." The defendant paid no attention and walked into the house.
Deputy Austin then walked through the walk-in porch and knocked on the door. The defendant's girlfriend, Kelly Maynard, whom the deputy knew, opened the door. The deputy told her that he needed the defendant to talk to him, and that otherwise he would come in to talk to the defendant himself. She responded that the defendant was in the bathroom. According to Austin, upon his response that he would wait, Maynard said, "Come on in and wait in the kitchen here." Whether she responded as such is unclear: the deputy did not include this comment in his July 10 police report on the incident.
Deputy Austin testified that when the defendant came out of the bathroom he spoke with slurred speech, had bloodshot eyes and smelled of alcohol. The deputy asked the defendant whether he had been drinking. The defendant responded that he had been. The deputy asked the defendant whether h
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