IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1950
                             Filed January 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAMUEL JUAREZ-MARTINEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      Samuel Juarez-Martinez appeals the judgment and sentence entered

following his felon-in-possession-of-a-firearm conviction.   REVERSED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       Samuel Juarez-Martinez appeals the judgment and sentence entered

following his felon-in-possession-of-a-firearm conviction, arguing the trial court

erred in denying his motion to suppress. Because the officer violated statutory

impoundment procedure for failure to produce proof of insurance, the

impoundment of Juarez-Martinez’s car was invalid, and accordingly, the officer’s

inventory search of the car was invalid. The trial court erred in denying Juarez-

Martinez’s motion to suppress. On this basis,1 we reverse and remand for further

proceedings.

       I. Background Facts and Proceedings.

       In the early morning hours of January 15, 2015, Des Moines Police Officer

Ben Carter was on special assignment monitoring a residence on East 15th

Street that had generated a lot of complaints.          At approximately 1:45 a.m.,

Juarez-Martinez parked his car in the driveway of the residence in a manner that

blocked a public sidewalk. Because he had been instructed to make arrests on

any offenses he witnessed at the residence, no matter how minor, Officer Carter

approached the car as Juarez-Martinez was getting out. The officer told Juarez-

Martinez that he had parked over the sidewalk in violation of city ordinance and

then asked him for his license and registration. By this time, Juarez-Martinez

was out of the car and had locked the doors. The officer asked for proof of

insurance and Juarez-Martinez unlocked the doors and got back in the car to

1
  Juarez-Martinez also argues he received ineffective assistance of trial counsel because
counsel failed to challenge the pretextual nature of the stop that led to impoundment of
his vehicle. Because we reverse on the ground his motion to suppress should have
been granted on a claim raised by trial counsel, we need not address the merits of his
ineffective-assistance claim.
                                         3


search the glove box. When Juarez-Martinez was unable to produce valid proof

of insurance for the car, the officer had him get out of the car. Officer Carter

stated he was impounding the car because Juarez-Martinez had no proof of valid

insurance2 and that he was going to get a citation for the sidewalk violation. As

the officer reached for the driver’s door, Juarez-Martinez told the officer he could

not search the car. The officer replied he was going to perform a standard

inventory search “to inspect the vehicle for valuables.”     Juarez-Martinez was

detained in handcuffs as he became more vocal.

      Officer Carter then began an inventory search of the car and discovered

a.38-caliber revolver containing five live rounds hidden inside of a sack on the

front passenger seat. Juarez-Martinez was placed under arrest and also issued

a citation for parking on the sidewalk. The State charged Juarez-Martinez with

several criminal offenses, including possession of a firearm as a felon.

      Juarez-Martinez filed a motion to suppress the evidence discovered during

the search of his vehicle, arguing that the inventory search did not comply with

the procedures for impounding a vehicle outlined in Iowa Code section 321.20B

(2015). The State resisted. Following an evidentiary hearing, the district court

denied the motion, as well as Juarez-Martinez’s motion to reconsider the ruling.

      After Juarez-Martinez waived his right to a jury trial, the parties agreed to

proceed to trial on the minutes of testimony, the police reports, and photographs

submitted by the State. The court found Juarez-Martinez guilty of possession of



2
  Juarez-Martinez produced an insurance card that had expired in December 2014.
Although he told Officer Carter that the vehicle was insured, he had no proof of
insurance with him, claiming it “had to be at home.”
                                         4


a firearm by a felon and sentenced him to a suspended sentence of no more

than five years in prison. Juarez-Martinez appealed.

         II. Scope and Standard of Review.

         We review the denial of a motion to suppress evidence based on

constitutional grounds de novo. See State v. Pals, 805 N.W.2d 767, 771 (Iowa

2011).     In doing so, we perform an independent review of the totality of

circumstances as shown in the entire record. See id. Although we defer to the

district court’s fact findings given its opportunity to view the witnesses and

evaluate their credibility, we are not bound by them. See id.

         III. Motion to Suppress.

         Juarez-Martinez argues the trial court erred in denying his motion to

suppress on the basis the inventory search of his vehicle violated his

constitutional right to be free from unreasonable searches and seizures.

Specifically, he claims the inventory search violated his rights because Officer

Carter failed to follow the statutory impoundment procedure requirements for

failure to produce proof of insurance.

         The vehicle inventory search is one of the well-recognized exceptions to

the Fourth Amendment’s warrant requirement.         See State v. Huisman, 544

N.W.2d 433, 436 (Iowa 1996). Whether the inventory search comports with

constitutional requirements “depends on two overlapping inquiries: the validity of

the impoundment and the scope of the inventory.” Id. If law enforcement acted

unreasonably with regard to either requirement, the search violates the Fourth

Amendment and the evidence discovered during the search must be suppressed.

Id.   In order for an impoundment to be reasonable, there must be “some
                                         5

reasonable necessity” justifying it.   Id.   This inquiry does not depend on the

reasonableness of an officer’s decision to impound the vehicle; instead, we must

determine whether (1) there were “reasonable standardized procedures” for

impoundment and (2) a purpose other than the investigation of criminal activity

existed. Id. at 437.

       The Des Moines Police Department’s written operating procedures

regarding vehicle impoundment state officers have authority to impound vehicles

pursuant to Iowa Code chapter 321. This chapter requires drivers to maintain

financial liability coverage and be able to produce proof of such coverage in

paper or electronic format. See Iowa Code § 321.20B(1)(a). If an officer stops a

motor vehicle and its driver is unable to provide proof of financial liability

coverage, the statute provides a mechanism by which the officer may impound

the vehicle. See id. § 321.20B(4)(a)(4)(a); State v. Bitker, No. 130520, 2014 WL

468228, at *3 (Iowa Ct. App. Feb. 5, 2014) (“Because [section 321.20B(4)(a)(4)]

allows for impoundment where a driver cannot produce proof of insurance, we

find that when viewed objectively, the officer was allowed to impound [the

defendant]’s vehicle.”)

       Juarez-Martinez does not dispute there were reasonable standardized

procedures for vehicle impoundment. Instead, he claims the impoundment was

invalid because Officer Carter failed to comply with those procedures by not

taking the steps the statute requires before impounding the vehicle.

       Section 321.20B(4)(a) states that when the driver of a motor vehicle

registered in this state is stopped by a peace officer and is unable to provide

proof of insurance,
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       the peace officer shall do one of the following:
              (1) Issue a warning memorandum to the driver.
              (2) Issue a citation to the driver.
              (3) Issue a citation and remove the motor vehicle’s license
       plates and registration receipt. . . .
              (4)(a) Issue a citation, remove the motor vehicle’s license
       plates and registration receipt, and impound the motor vehicle.

Officer Carter chose the most restrictive option as set forth in section

321.20B.(4)(a)(4)(a). The officer impounded the vehicle.

       In its ruling on the suppression motion, the district court rejected Juarez-

Martinez’s argument, concluding the officer’s failure to “immediately and

contemporaneously remove the license plates and take the registration” at the

time of the impoundment and inventory search did not violate Juarez-Martinez’s

constitutional rights. Although, as the district court noted, the statute “does not

specify the time within which this must be done,” section 321.20B(4)(a)(4)(a) sets

out the administrative steps necessary for an impoundment of a vehicle without

proof of insurance: (1) issue a citation, (2) remove the license plates and

registration receipt, and (3) impound the vehicle. A plain reading of the statute

requires the citation for failure to produce proof of insurance be issued and

license plates and registration receipt be removed before the vehicle is

impounded. It is unclear from our record as to whether or not Officer Carter

issued Juarez-Martinez a citation for failure to provide proof of insurance before

impounding the car.3 In any event, it is clear that Officer Carter failed to remove

the license plates and registration receipt before impounding the car. Because

3
  At the suppression hearing the officer was asked if he issued “a citation.” The officer
responded, “I did.” It is not clear if the officer was referencing the parking citation or one
for lack of proof of insurance. Neither the officer’s case investigation report nor the
minutes of testimony make any mention of the issuance of a citation for lack of proof of
insurance. The parking citation was not issued until after the search was performed.
                                           7


the   officer   overlooked   the   legislatively   imposed    requirements   for   the

impoundment, it appears he was motivated solely by an investigatory purpose.

See Huisman, 544 N.W.2d at 439. We therefore conclude the impoundment was

invalid and, accordingly, the inventory search was invalid.

       The district court erred in denying Juarez-Martinez’s motion to suppress.

We reverse the judgment of the district court and remand for further proceedings.

       REVERSED AND REMANDED.