State Of Iowa Vs. Jason Allen Wing

              IN THE SUPREME COURT OF IOWA
                              No. 08–1048

                        Filed December 3, 2010


STATE OF IOWA,

      Appellee,

vs.

JASON ALLEN WING,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire, Judge.



      Defendant was granted further review of court of appeals’ decision

affirming district court’s denial of his motion to dismiss. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED.


      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant

Attorney General, Michael J. Walton, County Attorney, and Robert

Weinberg, Assistant County Attorney, for appellee.
                                            2

HECHT, Justice.

       In this case we are asked to determine whether the defendant’s

encounter with law enforcement amounted to an arrest for purposes of

the speedy indictment rule. We conclude it did.

       I. Background Facts and Proceedings.

       On July 7, 2007, Detective Lansing of the Davenport Police

Department received a tip that Jason Wing was going to transport a large

quantity of marijuana across the city. As a result, Lansing and other

members of the Tactical Operations Bureau set up surveillance of Wing’s

house. After a short time, they observed Wing exit the house, place a

package in the trunk of a red Pontiac, and get into the passenger side of

the vehicle. Brandi Basden entered the vehicle on the driver’s side and

drove away.       Lansing contacted Officer Schertz, who was driving a

marked patrol car, explained the situation, and asked him to execute a

traffic stop of the vehicle driven by Basden. Schertz located the vehicle,

determined the registration was expired, and pulled it over.

       Officer Schertz approached the car and told Basden that her

registration was expired.         Schertz also asked Wing for identification,

which Wing readily produced. When Basden stepped out of the car to

sign the citation, Schertz asked if he could search the car, and she

agreed.    Officer Schertz instructed Wing to get out of the car, patted

down both Wing and Basden, and directed them to stand on the sidewalk

“or do whatever.”1         After searching the interior of the car, Schertz

searched the trunk and located a box containing a brick of marijuana. 2

       1
       The events of July 7, 2007, are gleaned both from the testimony of the officers
and Wing himself, as well as from State’s Exhibit 1, a video recording of the traffic stop
captured by a camera located on Schertz’s patrol car.
       2OfficerSchertz had apparently not only been informed that the other officers
suspected the vehicle contained marijuana, but that they believed it was in the trunk
because as he searched the interior of the car, he radioed to the other officers,
                                        3

Officer Schertz left the box in the trunk, but asked Basden to sit in the

back of the patrol car. Wing asked Schertz if he had found the drugs,

and Schertz said, “Yeah, I found the pot in the trunk of [the] car.” Wing

admitted ownership of the marijuana. Immediately, Officer Schertz said,

“What’s that? It’s yours? Okay, Jason, at this time, you have the right

to remain silent.” Schertz informed Wing of his rights, handcuffed him,

conducted another more thorough pat down search, and placed him in

the backseat of the patrol car. 3 Basden, who had not been Mirandized or

handcuffed, was allowed to get out of the patrol car.

      Detective Proehl, who had been working on the Tactical Operations

Bureau with Detective Lansing and had observed the traffic stop from a

short distance away, arrived at the scene of the traffic stop moments

after Wing was placed in the patrol car. Proehl asked if Wing had been

Mirandized, and Schertz explained what had taken place: “He asked me

if I found that pot, and I said ‘yeah,’ and he said ‘it’s mine, don’t charge

her with it, it’s mine.’ So I Mirandized him right then and there, and put

him in the back of the car.”

      Detective Proehl got into the patrol car with Wing and asked Wing

about the marijuana. Wing again admitted ownership of the contraband.

Proehl asked for, and Wing granted, permission to search Wing’s house.

Proehl then asked Schertz to drive Wing to Wing’s house. Using police

codes, Schertz asked Proehl if Wing was being arrested.                    Proehl

responded that Wing was a “10-59,” meaning the officers were “giving



______________________________
indicating that he had consent to search the car and that he was searching the
passenger compartment, “trying to make it not look that obvious.”
      3Officer    Schertz testified he placed handcuffs on Wing for safety reasons,
because he was the only officer on the scene and because he was concerned that Wing
might try to flee.
                                            4

[him] a ride somewhere.” The officers removed Wing’s handcuffs before

they transported him to his house and undertook the search. 4

       When they arrived at Wing’s house, Schertz left while Proehl and

Wing entered the house. Wing signed a form consenting to the search.

During the search, in which additional incriminating evidence was found,

Proehl inquired whether Wing would be interested in cooperating with

law enforcement in other drug investigations.               Wing indicated he was

interested.     At the conclusion of the search, Proehl gave Wing an

inventory of the seized items and a business card. Proehl told Wing to

call him.

       Wing apparently did not call Proehl.             After about five months, a

criminal complaint was filed against Wing on December 18, 2007, and a

trial information was filed on January 11, 2008.

       Wing filed a motion to dismiss for failure to comply with Iowa Rule

of Criminal Procedure 2.33(2)(a) which requires an indictment be filed

within forty-five days of an arrest, arguing he had been arrested on

July 7, 2007. After a hearing on the motion, the district court concluded

Wing had not been arrested during his encounter with law enforcement

in July and rule 2.33 had not been violated. Wing agreed to a trial on

the minutes of testimony and was convicted of possession of a controlled

substance with intent to deliver. Wing appealed, contending his right to



       4Wing   testified the handcuffs were not removed until after he was taken to his
house and agreed to cooperate with the officers. However, Officer Schertz testified
Detective Proehl removed the handcuffs at the scene of the traffic stop, and Detective
Proehl’s testimony indicates the handcuffs were removed at the scene of the stop after
Wing agreed to permit a search of his house. The video recording indicates that after
the officers discussed Wing’s “10-59” status, Officer Schertz asked Detective Proehl if he
should remove the handcuffs. Proehl’s response is not recorded. However, the district
court found the handcuffs were removed at the scene of the stop, and because this
finding is supported by substantial evidence, it is binding on appeal. State v. Lyrek,

385 N.W.2d 248, 250

 (Iowa 1986).
                                            5

a speedy indictment was violated. We transferred the case to the court of

appeals, which affirmed the district court’s ruling and the resulting

conviction. We granted Wing’s application for further review.

       II. Scope of Review.

       We review a district court’s decision regarding a motion to dismiss

for lack of speedy indictment for correction of errors at law.                  State v.

Dennison, 

571 N.W.2d 492, 494

 (Iowa 1997).                   We are bound by the

findings of fact of the district court if they are supported by substantial

evidence. State v. Lyrek, 

385 N.W.2d 248, 250

 (Iowa 1986).

       III. Discussion.

       Wing contends that for purposes of the speedy indictment rule, he

was arrested during his encounter with police on July 7, 2007, and a

timely indictment should have been filed on or before August 22, 2007.5

Instead, the complaint was filed in December 2007, and the trial

information was not filed until January 11, 2008, roughly six months

after Wing’s encounter with law enforcement.

       The parties do not dispute the applicable law or its interpretation.

Rather they disagree about how the specific facts of Wing’s case fit into

the framework established by our court rules, the Iowa Code, and our
case law applying these provisions.

       Our analysis must begin with the speedy indictment rule itself.
       It is the public policy of the state of Iowa that criminal
       prosecutions be concluded at the earliest possible time
       consistent with a fair trial to both parties. . . .

             a. When an adult is arrested for the commission of a
       public offense . . . and an indictment is not found against
       the defendant within 45 days, the court must order the
       prosecution to be dismissed, unless good cause to the


       5For  purposes of rule 2.33(2)(a) an indictment includes a trial information. State
v. Lies, 

566 N.W.2d 507, 508

 (Iowa 1997).
                                   6
      contrary is shown or the defendant waives the defendant’s
      right thereto.
Iowa R. Crim. P. 2.33(2)(a).     The speedy indictment rule, and its
counterpart, the speedy trial rule      articulated in rule    2.33(2)(b),

implement federal and state constitutional speedy trial guarantees. State

v. Cennon, 

201 N.W.2d 715, 718

 (Iowa 1972); State v. Deases, 

476 N.W.2d 91, 95

 (Iowa Ct. App. 1991). The purpose of both the criminal

procedural rules and the constitutional provisions is to “relieve an

accused of the anxiety associated with a suspended prosecution and

provide reasonably prompt administration of justice.” State v. Delockroy,

559 N.W.2d 43, 46

 (Iowa Ct. App. 1996); see also State v. Allnutt, 

261 Iowa 897, 901

, 

156 N.W.2d 266, 268

 (1968), overruled on other grounds

by State v. Gorham, 

206 N.W.2d 908, 913

 (Iowa 1973).          The speedy

indictment and speedy trial rules also aim to prevent the harm that

arises from the “possible impairment of the accused’s defense due to

diminished memories and loss of exculpatory evidence.” State v. Olson,

528 N.W.2d 651, 654

 (Iowa Ct. App. 1995).      This type of harm is the

“most serious,” because “the inability of a defendant adequately to

prepare his case skews the fairness of the entire system.”     Barker v.

Wingo, 

407 U.S. 514, 532

, 

92 S. Ct. 2182, 2193

, 

33 L. Ed. 2d 101, 118

(1972).

      Before 1978, the time for speedy indictment began to run when “a

person [was] held to answer for a public offense.”   

Iowa Code § 795.1

(1975) (emphasis added).   In 1976, the General Assembly rewrote the

Iowa Criminal Code, and section 795.1 became Iowa Rule of Criminal

Procedure 27 (now rule 2.33), providing that the speedy indictment clock

begins running when a person is “arrested for the commission of a public

offense.” 1976 Iowa Acts ch. 1245(2), § 1301 (codified at Iowa Code ch.

813, r. 27 (1979)) (emphasis added). The new Iowa Criminal Code also
                                            7

reworked provisions defining arrest.            Id. §§ 401–429 (codified at Iowa

Code ch. 804 (Supp. 1977)).

       It is a well-settled rule of statutory construction that statutes
       relating to the same subject matter shall be construed
       together, particularly if the statutes were passed in the same
       legislative session. Therefore, we define “arrest” in [rule
       2.33] to be the same as the definition provided in section
       804.5, as explained in section 804.14.
State v. Schmitt, 

290 N.W.2d 24, 26

 (Iowa 1980) (citations omitted). 6

       An arrest “is the taking of a person into custody when and in the

manner authorized by law, including restraint of the person or the

person’s submission to custody.” 

Iowa Code § 804.5

 (2007).
             The person making the arrest must inform the person
       to be arrested of the intention to arrest the person, the
       reason for arrest, and that the person making the arrest is a
       peace officer, if such be the case, and require the person
       being arrested to submit to the person’s custody, except
       when the person to be arrested is actually engaged in the
       commission of or attempt to commit an offense, or escapes,
       so that there is no time or opportunity to do so . . . .

Iowa Code § 804.14.7

       6The   definitions of arrest contained in sections 804.5 and 804.14 (and their
predecessors) are not used solely to determine whether a person has been arrested for
speedy indictment purposes. They have been relied upon to determine whether an
arrest has occurred when someone is charged with escape from custody in violation of
section 719.4, State v. Breitbach, 

488 N.W.2d 444

, 446–47 (Iowa 1992); whether a
search was incident to arrest, State v. Nucaro, 

614 N.W.2d 856, 859

 (Iowa Ct. App.
2000); whether a person is guilty of resisting arrest, State v. Yates, 

243 N.W.2d 645

,
648–49 (Iowa 1976); whether a person has properly used force in response to an
attempt to arrest him, State v. Thomas, 

262 N.W.2d 607, 611

 (Iowa 1978), State v.
Frink, 

255 Iowa 59, 66

, 

120 N.W.2d 432, 437

 (1963); whether a person has been
arrested so that implied consent procedures must be followed, Dennison, 

571 N.W.2d at 495

, State v. Ransom, 

309 N.W.2d 156

, 158–59 (Iowa Ct. App. 1981); and whether
defendants in a civil suit are liable for false imprisonment, assault and battery, Rife v.
D.T. Corner, Inc., 

641 N.W.2d 761

, 768–69 (Iowa 2002).
       7It has been suggested that the “held to answer” framework of the pre-1977
Code survived the 1976 amendments. We do not agree. We acknowledge that under
the former Iowa Criminal Code, the speedy indictment timeline began to run when the
defendant was “held to answer” for a public offense. See 

Iowa Code § 795.1

 (1975). The
concept of “held to answer” under the 1975 Code was unrelated to physical restraint of
the defendant and was related instead to the point at which the defendant was charged
and held, physically or in a legal sense, to answer the charge. Notably, the 1976
Criminal Code revision abandoned the “held to answer” language found in former Iowa
                                           8

       Despite the seemingly rigid notification requirements described in

section 804.14, we have consistently acknowledged that not all seizures

by law enforcement officers must meet such strict conditions to

constitute an arrest. “No formal announcement is required, as long as

[the person making the arrest] sufficiently conveys, either through words

or conduct, the intent to perform a[n] . . . arrest.” Rife v. D.T. Corner,

Inc., 

641 N.W.2d 761, 769

 (Iowa 2002).               While formal words are not

required, what a suspect is told or not told about his arrest status is a

factor to be considered when determining whether an arrest has

occurred. See State v. Rains, 

574 N.W.2d 904, 910

 (Iowa 1998). We also

consider whether a person has been handcuffed or booked, but neither of

these factors is determinative. Dennison, 

571 N.W.2d at 495

. Further,

the “mere submission to authority” does not result in an arrest, 

id.

 at

494–95, and the question of whether an arrest has occurred does not

turn solely on whether a reasonable person would have felt free to leave

during the encounter. State v. Johnson-Hugi, 

484 N.W.2d 599, 601

 (Iowa

1992). Thus, the test for determining whether an arrest occurred under

sections 804.5 and 804.14 is not coterminous with the standard used to

determine whether a person has been seized for Fourth Amendment

purposes. 

Id.

            What can be gleaned from [our] cases is that the
      question of whether a defendant was ‘arrested’ is determined
      on a case-by-case basis. There is no bright-line rule or test.
      These basic principles assist us, but are not determinative.
______________________________
Code section 795.1. A new speedy trial trigger—the “arrest”—was substituted in its
place. We believe the substitution of “arrest” for the former statutory “held to answer”
formulation signaled a substantive departure from the former standard, not merely the
substitution of a new word meaning the same thing. When legislators used the word
“arrested” in what is now rule 2.33, we assume they were aware of the meaning
attributed to the word “arrest” in other contexts under Iowa law. State v. Aldape, 

307 N.W.2d 32, 35

 (Iowa 1981) (“We assume that the . . . legislature was familiar with the
existing state of the law.”).
                                           9

Dennison, 

571 N.W.2d at 495

.

       In Johnson-Hugi, we also noted that “ ‘an assertion of authority

and purpose to arrest followed by submission of the arrestee constitutes

an arrest.’ ” 

484 N.W.2d at 601

 (quoting California v. Hodari D., 

499 U.S. 621, 626

, 

111 S. Ct. 1547, 1551

, 

113 L. Ed. 2d 690, 697

 (1991)). This

language could be understood as grafting an additional requirement onto

sections 804.5 and 804.14 that an officer possess an intent to arrest.

See Rains, 

574 N.W.2d at 911

 (“Although Rains did ultimately submit to

[the officer’s] authority [after being shot and having a gun held to his

head], without evidence of a purpose to arrest, we cannot find an arrest

occurred that night.”); Delockroy, 

559 N.W.2d at 46

 (“[W]e look to

determine if the facts reveal an assertion of authority and purpose to

arrest, together with a submission of the arrestee.”). However, neither

section 804.5 nor 804.14 explicitly requires an assessment of the officer’s

subjective intent to determine if an arrest has occurred. Rather, section

804.14 requires notice to the arrestee that he or she is being arrested,

specifically that the officer “inform the person to be arrested of the

intention to arrest the person . . . [unless] there is no time or opportunity

to do so.” 

Iowa Code § 804.14

. Given the broad range of contexts in

which the arrest statutes are utilized, we think the notice requirement is

designed to do just that—provide notice to an arrestee that he or she is

being arrested unless the situation is such that it is obvious to the

arrestee that he or she is being arrested. 8

       8The  question posed in Hodari D. was not whether a suspect had been formally
arrested, but rather whether he had been seized for Fourth Amendment purposes. 

499 U.S. at 623

, 

111 S. Ct. at 1549

, 

113 L. Ed. 2d at 695

. The specific question at issue
was whether Hodari had been seized when an officer chased him on foot but never
touched him. 

Id.

 As the Supreme Court considered whether physical contact was
required to effect a seizure, it looked to common law principles of arrest and quoted the
language which was later relied upon in Johnson-Hugi. 

Id. at 626

, 111 S. Ct. at 1550–
51, 

113 L. Ed. 2d at 697

. As the Court was concerned with whether the officer had
                                            10

       When an arresting officer does not follow the protocol for arrest

outlined in section 804.14 and does not provide any explicit statements

indicating that he or she is or is not attempting to effect an arrest, we

think the soundest approach is to determine whether a reasonable

person in the defendant’s position would have believed an arrest

occurred, including whether the arresting officer manifested a purpose to

arrest. 9   Viewing the events surrounding an alleged arrest from this

perspective is consistent with the way courts analyze whether a person

has been seized for Fourth Amendment purposes. See, e.g., Berkemer v.

McCarty, 

468 U.S. 420, 442

, 

104 S. Ct. 3138, 3151

, 

82 L. Ed. 2d 317, 336

 (1984) (“A policeman’s unarticulated plan has no bearing on the

question whether a suspect was ‘in custody’ at a particular time; the only

relevant inquiry is how a reasonable [person] in the suspect’s position

would have understood [the] situation.”); United States v. Bengivenga,

845 F.2d 593, 596

 (5th Cir. 1988) (“A suspect is . . . ‘in custody’ for

Miranda purposes when . . . a reasonable person in the suspect’s

position would have understood the situation to constitute a restraint on

freedom of movement of the degree which the law associates with a

formal arrest.”); People v. P., 

233 N.E.2d 255, 260

 (N.Y. 1967) (adopting a

test that concludes custody occurs if the suspect is restrained in any

significant way or reasonably believes he has been so restrained because
______________________________
obtained custody of Hodari for Fourth Amendment purposes, the Court did not discuss
what constitutes a “purpose to arrest” or the relevance of an officer’s subjective intent to
the determination of whether a formal, statutory arrest has occurred.
        9We do not think the clarification that an officer’s actual subjective intent is not

critical to the determination of whether an arrest has occurred and that whether a
purpose to arrest exists should be viewed from the perspective of a reasonable person in
the defendant’s position would have changed the result in Johnson-Hugi. The court
concluded Johnson-Hugi had not been arrested because at the beginning of her
encounter with undercover officers she was given a choice between being arrested or
cooperating with law enforcement. 

484 N.W.2d at 601

. She chose to cooperate which
precluded any reasonable understanding that she was being arrested. 

Id.

                                            11

“it is not solely dependent either on the self-serving declarations of the

police officers of [sic] the defendant nor does it place upon the police the

burden of anticipating the frailties or idiosyncrasies of every person

whom they question”).

       It has been suggested that the meaning of “arrest” in our speedy

indictment rule should be conformed to the meaning of “arrest” under

the federal speedy indictment rule. We disagree. Although the federal

speedy indictment statute 10 was adopted in 1974—two years before the

1976 amendments 11 of the Iowa Criminal Code—there is no evidence the

general assembly intended to conform the Iowa speedy indictment rule to

the federal rule.        Although both the Iowa and the federal provisions

utilize the word “arrested,” that is the beginning and the end of the

similarity between the two provisions.              Certainly the very core of the

federal rule adopted in 1974 is the time allotted to the government to file

criminal charges—thirty days. 

18 U.S.C. § 3161

(b) (2006). However, our

general assembly chose a deadline of forty-five days, rejecting the core of

the federal framework and evidencing a disinclination to follow the

federal model in lockstep. Thus, based on the language of rule 2.33(2)(a)

alone, any suggestion that the federal speedy indictment regime was “the

pattern” for the Iowa rule is suspect. 12

       10The   federal speedy indictment rule provides in relevant part:
       Any information or indictment charging an individual with the
       commission of an offense shall be filed within thirty days from the date
       on which such individual was arrested or served with a summons in
       connection with such charges.

18 U.S.C. § 3161

(b) (2006).
       11The Iowa Criminal Code was enacted in 1976, but it did not become effective
until January 1, 1978. See 1976 Iowa Acts ch. 1245.
       12Further, despite claims to the contrary, there is no evidence of a longstanding,
special meaning of “arrest” in federal law that is congruent with the former “held to
answer” language of Iowa’s former speedy-indictment statute. Federal court decisions
interpreting the federal speedy indictment rule and interpreting “arrested” for speedy
                                           12

       Despite rule 2.33’s explicit policy statement favoring speedy

prosecutions, we have acknowledged competing policy considerations in

our decisions, particularly in a situation, such as this one, where police

seek cooperation from a suspect to advance other investigations.
       Law enforcement authorities must be accorded latitude in
       procuring the non-volunteer assistance of private citizens to
       serve as confidential informants in combating crime. If every
       such action were deemed to be an “arrest” for purposes of
       rule [2.33(2)], the time within which authorities could use
       informants to obtain information would be substantially
       limited. We refuse to hamstring law enforcement authorities
       by such a rule.
Johnson-Hugi, 

484 N.W.2d at 602

.

       Although we recognize the importance to law enforcement of

cooperation from suspects involved in criminal activity, we conclude the

purposes of the speedy indictment rule need not be sacrificed to secure

it. As Justice Snell noted in his dissent in Johnson-Hugi, the fear that

law enforcement will be “hamstrung” by the speedy indictment rule

seems “overblown” because, notwithstanding enforcement of the rule, law

enforcement officers can use informants for as long as they wish. 

Id. at 603

 (Snell, J., dissenting).        They need only determine within forty-five

days “whether their informant is capable and willing to provide the

information that they desire.” 

Id.

 Further,
              [i]f law enforcement [officers] desire to utilize
       cooperation agreements after an arrest, and to delay the
       filing of charges pending completion of the agreement, a
       waiver of the speedy indictment rule can be requested as
       part of the cooperation agreement.
Delockroy, 

559 N.W.2d at 47

.

______________________________
indictment purposes filed after the 1976 revision of Iowa’s criminal code surely did not
inform the drafters as to the meaning of the term “arrest.” Instead we find it more likely
the Iowa legislature was familiar with and influenced by definitions of “arrest” that
already existed in Iowa law. See 

Iowa Code §§ 755.1

, .2, and .7 (1975); see also State v.
Medina, 

165 N.W.2d 777, 782

 (Iowa 1969); Frink, 255 Iowa at 66–67, 

120 N.W.2d at 437

.
                                      13

         With these principles in mind, we shall briefly review the relevant

caselaw to identify the types of facts and circumstances that our

appellate courts have deemed to constitute an arrest for speedy

indictment       purposes.   In   Johnson-Hugi,     undercover   officers   met

Johnson-Hugi at her house to purchase drugs. 

484 N.W.2d at 599

. The

officers identified themselves and gave Johnson-Hugi a choice between

becoming a confidential informant and being arrested.             

Id. at 600

.

Johnson-Hugi agreed to cooperate.          

Id.

   The officers then patted her

down, searched her purse, and drove her to the police station. 

Id.

 At the

station, she received Miranda warnings, filled out paperwork “confirming

her status as a ‘cooperating individual,’ ” and was returned to her home.

Id.

   Because Johnson-Hugi had been presented with the choice of

cooperation or arrest at the beginning of her encounter with law

enforcement, we determined her decision to cooperate “necessarily

precluded the possibility of there being an ‘arrest.’ ”           

Id. at 601

.

Accordingly, we concluded she had not been arrested. 

Id. at 602

.

         In Smith, the court of appeals also concluded a defendant who

agreed to cooperate had not been arrested. Smith, 552 N.W.2d at 166.

Officers obtained a search warrant for the home Smith shared with his

girlfriend. Id. at 164. When they arrived at the house to execute the

warrant, the officers handcuffed Smith as he attempted to block their

entry.     Id.   After the search revealed incriminating evidence, Smith

offered to cooperate in exchange for leniency. Id. The officers told Smith

he was “facing charges for possession with intent to deliver and they

were taking him to the station to straighten it out.” Id. At the station,

Smith received Miranda warnings and provided the officers with

information about his drug supplier. Id. After the supplier’s home was

searched pursuant to a search warrant, Smith was allowed to leave the
                                          14

station. Id. Concluding that Smith’s transportation to and detention at

the police station was incidental to the cooperation agreement, the court

of appeals concluded Smith had not been arrested. Id. at 166. 13

       However, in Delockroy, a case involving the same events described

above in Smith, the court of appeals concluded Delockroy was arrested

for speedy indictment purposes despite her boyfriend’s cooperation

agreement. 

559 N.W.2d at 46

. Delockroy was handcuffed at the same

time as Smith when police forced their way into the house to execute a

search warrant. 

Id. at 44

. Although Smith spoke with the officers and

offered to cooperate during the search, Delockroy did not participate in

the conversations.      

Id.

   Delockroy and Smith were transported to the

police station in separate vehicles.           

Id.

   Delockroy’s handcuffs were

removed after she arrived at the station, and she was read her Miranda

rights and placed in a room by herself. 

Id.

 Although Smith negotiated

an agreement providing for reduced charges against Delockroy in

exchange for his cooperation, Delockroy did not take part in the

discussions between Smith and law enforcement. 

Id.

 She was ultimately

released with Smith several hours later. 

Id.

 Because police had probable

cause to arrest her, because she had been transported to the police

station against her will, and because she was not actively seeking to

work out a deal with the police herself, the court of appeals concluded

she had been arrested under these circumstances. 

Id. at 46

. 14




       13The court of appeals did not rely on the “purpose to arrest” language of
Johnson-Hugi to determine that Smith was not arrested.
       14Although  as in Johnson-Hugi the court of appeals did consider whether there
was evidence of a “purpose to arrest,” we do not think the determination that Delockroy
was arrested turned on that question. Rather the critical facts, as articulated by the
court of appeals, would have led a reasonable person in Delockroy’s position to believe
she was arrested.
                                          15

       In reviewing the circumstances surrounding Wing’s interaction

with law enforcement on July 7, 2007, we conclude that, despite the fact

that late in the encounter there was some discussion about future

cooperation, a reasonable person in Wing’s position would have believed

an arrest had occurred.         A car he was traveling in was subject to a

routine traffic stop.      Wing cooperated with the officer conducting the

stop, providing identification, submitting to a pat down search, and

complying with a request to wait on the sidewalk while the vehicle was

searched. When a large brick of marijuana was discovered in the course

of the search, Wing admitted ownership of the contraband and was

immediately handcuffed, Mirandized, searched again, and placed in the

back of the patrol car.       There was no discussion up to that point, as

there was in Johnson-Hugi, as to the prospect of his cooperation in other

drug investigations, and Wing had not been given a choice between being

arrested and cooperating with law enforcement. 15 

484 N.W.2d at 600

.

At this point in the encounter, Wing was not even aware that there were

other officers involved in the operation. When Detective Proehl arrived

and spoke with him, Wing agreed to let the officers search his house. 16


        15Further, unlike Smith, who had been handcuffed at the beginning of his

encounter with law enforcement because he was being uncooperative and violent, 552
N.W.2d at 164, Wing was Mirandized, handcuffed, and searched immediately upon his
admission of ownership of a large quantity of marijuana. Officer Schertz testified that
he handcuffed Wing for safety reasons and because he was afraid he might try to run.
However, despite this claim, we note that while both Officer Schertz and Wing knew
there was contraband in the trunk of the car, Wing was completely cooperative during
the entire encounter. Officer Schertz had previously turned his back on Wing and
implicitly trusted him to stand on the sidewalk while he searched the vehicle. Schertz
had also already conducted one pat down of Wing to determine he was not carrying a
weapon.
       16Officer Schertz asked Detective Proehl if Wing was a “10-59” just before he
transported Wing to his house, and Proehl replied that he was. Even assuming Wing
understood the police code used, it was too late to “unarrest” Wing. See State v. Davis,

525 N.W.2d 837, 840

 (Iowa 1994) (holding that a person cannot be arrested and later
“unarrested” to stop the tolling of the speedy indictment clock).
                                          16

However, there was still no discussion up to that point of Wing’s

cooperation as an informant in other drug crime investigations. Officer

Schertz had already exerted his authority, objectively evidencing a

purpose to arrest, and Wing had submitted to that authority before

Proehl arrived at the scene. See Johnson-Hugi, 

484 N.W.2d at 601

.

       There is evidence in the record tending to prove Detective Proehl

and the members of the Tactical Operations Bureau who had been

investigating Wing planned to arrest Wing only if his cooperation in other

investigations could not be secured.            Even if we credit this evidence,

however, it is not dispositive because the subjective intent of Detective

Proehl and his colleagues is not controlling in the determination of

whether a reasonable person in Wing’s position would have believed he

had been arrested. Any conditional plan to arrest Wing only if he refused

to serve as an informant was apparently not communicated to Officer

Schertz, nor was it communicated to Wing before he was Mirandized,

searched, handcuffed, and placed in the patrol car upon his admission of

ownership of the brick of marijuana.

       At some point either during or after the search of the house where

more evidence incriminating Wing was found, Detective Proehl finally

brought up the subject of cooperating with law enforcement on other

investigations in the area.             Although Wing expressed a general

willingness to cooperate, no formal paperwork was completed “confirming

[Wing’s] status as a ‘cooperating individual.’ ” 

Id. at 600

. Rather, Wing

was given Officer Proehl’s business card and told to “give [him] a call.”17

Wing was given no guidance as to what was expected of him to avoid


       17We   note that the district court concluded Officer Proehl “gave [Wing] his cell
phone number, and told him they would call him.” However, both Proehl and Wing
testified conversely that Proehl told Wing to call him.
                                         17

prosecution for the crimes to which he had admitted. 18 And although

Wing did not call Detective Proehl, Proehl waited five months before

obtaining an arrest warrant and pursuing charges against Wing.

         As the court of appeals noted in Delockroy, if officers enter into

cooperation agreements after an arrest, they may certainly include a

waiver of the speedy indictment rule as part of the agreement.                     

559 N.W.2d at 47

. In this case, no formal agreement was ever reached which

might have included a speedy indictment waiver. Given that Wing never

called      Proehl,   law   enforcement     officers    had    forty-five   days    of

unresponsiveness in which to determine that Wing’s cooperation might

fall short of their expectations and to secure a waiver of the speedy

indictment rule or cause an indictment to be filed.               We do not think

forty-five days during which no communication was received from Wing

was insufficient to assess Wing’s willingness to cooperate in a manner

satisfactory to law enforcement. Accordingly, we conclude enforcement

of the speedy indictment rule would not “hamstring” law enforcement

under the circumstances presented here. 19 The speedy indictment rule

and “the fourth amendment share a kinship in that the fourth

amendment’s proscription on unreasonable seizures is designed ‘to

         18It
            is not clear what Wing was promised, if anything, in exchange for his
cooperation. The extent of the evidence in the record is that Wing expressed a
willingness to “help . . . with other drug investigations in the Davenport area or the
Scott County area.” Although we have concluded that Wing was arrested before he was
transported to his house for the search, even if we take into consideration the rest of
the events of the evening and conversation regarding cooperation, we are not convinced
that the terms and implications of the cooperation arrangement were clear enough to
relieve a reasonable person in Wing’s position of the belief that he had been arrested
that night.
         19In
            fact, a rule enforcing the time requirements imposed by the speedy
indictment rule in the absence of a formal cooperation agreement waiving the suspect’s
right under the rule also arguably motivates the suspect to cooperate quickly to avoid
prosecution or suffer the consequences.
                                       18

prevent arbitrary and oppressive interference by enforcement officials

with the privacy and personal security of individuals.’ ” Johnson-Hugi,

484 N.W.2d at 603

 (Snell, J., dissenting) (quoting United States v.

Martinez-Fuerte, 

428 U.S. 543, 554

, 

96 S. Ct. 3074, 3081

, 

49 L. Ed. 2d 1116, 1126

 (1976)).     We conclude the rule was violated here and

therefore reverse Wing’s conviction.

      IV. Conclusion.

      We conclude Wing was arrested on July 7, 2007, for speedy

indictment purposes, and the trial information filed in January 2008 was

untimely. The district court erred by denying Wing’s motion to dismiss.

Accordingly, we vacate the decision of the court of appeals, reverse the

conviction, and remand for entry of a dismissal.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Cady, J., who dissents.
                                      19
                                                   #08–1048, State v. Wing
CADY, Justice (dissenting).

      I respectfully dissent. Statutes and rules must only be applied to

circumstances intended to be within their purview. The speedy-trial rule

was never intended to apply when a person is detained by police at a

roadside encounter for suspected criminal conduct but released at the

scene without being told he was under arrest, without being transported

to the police station for processing and appearance before a magistrate,

without being charged with a criminal offense, without being subjected to

the other processes of the prosecution of a crime, and without any

disruption and burden associated with a criminal prosecution.           The

majority has misapplied the definition of an arrest under the speedy-

indictment rule by failing to appreciate that an arrest takes on a different

meaning in the context of the right to a speedy trial.

      The starting point to interpret the speedy-indictment rule begins

with the context in which the rule was conceived. See State v. Kamber,

737 N.W.2d 297, 299

 (Iowa 2007) (recognizing statutes must be

interpreted in their context because words can have different meanings

in different contexts).    Like the federal speedy-indictment rule, the

purpose of Iowa’s speedy-indictment rule was to implement the

constitutional right to a speedy trial. State v. Cennon, 

201 N.W.2d 715, 718

 (Iowa 1972); see also United States v. MacDonald, 

456 U.S. 1

, 7 n.7,

102 S. Ct. 1497

, 1501 n.7, 

71 L. Ed. 2d 696

, 703 n.7 (1982) (recognizing

the Speedy Trial Act of 1974 was intended “ ‘to give effect to the [S]ixth

[A]mendment right to a speedy trial’ ” (quoting S. Rep. No. 93–1021, at 1

(1974))); United States v. Hillegas, 

578 F.2d 453, 456

 (2d Cir. 1978)

(recognizing the Speedy Trial Act of 1974 was intended to implement the

constitutional right to a speedy trial).
                                    20

      A “literal reading” of the constitutional right to a speedy trial

reveals the right “attaches only when a formal criminal charge is

instituted and a criminal prosecution begins.” MacDonald, 

456 U.S. at 6

,

102 S. Ct. at 1501

, 

71 L. Ed. 2d at 702

. This reading is the same for the

right to a speedy trial under both the Sixth Amendment to the United

States Constitution and article I, section 10 of the Iowa Constitution

because the operative language of the two provisions is the same. Both

constitutional provisions provide that in “all criminal prosecutions” the

“accused” shall have a “right to a speedy . . . trial.” As observed by the

United States Supreme Court:

      On its face, the protection of the Amendment is activated
      only when a criminal prosecution has begun and extends
      only to those persons who have been “accused” in the course
      of that prosecution. These provisions would seem to afford
      no protection to those not yet accused, nor would they seem
      to require the Government to discover, investigate, and
      accuse any person within any particular period of time. The
      [A]mendment would appear to guarantee to a criminal
      defendant that the Government will move with the dispatch
      that is appropriate to assure him an early and proper
      disposition of the charges against him.

United States v. Marion, 

404 U.S. 307, 313

, 

92 S. Ct. 455, 459

, 

30 L. Ed. 2d 468, 474

 (1971).        Consequently, “it is either a formal

indictment or information or else the actual restraints imposed by arrest

and holding to answer a criminal charge that engage the particular

protections of the speedy trial provision.” 

Id. at 320

, 92 S. Ct. at 463, 

30 L. Ed. 2d at 479

.     Importantly, this approach is what the speedy-

indictment rule sought to implement.        Accordingly, the language of

Iowa’s speedy-indictment rule must be interpreted in the context of that

point in time when a person becomes an “accused” in a criminal

prosecution, not the point when a person is in police custody in such a

way that a reasonable person would believe he or she is under arrest. An
                                      21

interpretation of an arrest based on a custodial setting is appropriate in

implementing the rights against self-incrimination and the right to

counsel, but not in implementing the right to a speedy trial. Compare

State v. Evans, 

495 N.W.2d 760, 762

 (Iowa 1993) (right to counsel

attaches when defendant is interrogated in police custody due to risk of

self-incrimination in an inherently coercive environment), with State v.

Gathercole, 

553 N.W.2d 569, 573

 (Iowa 1996) (rejecting the argument

that a de facto arrest due to confinement by authorities triggers running

of time for speedy trial). The rights serve different purposes and must be

interpreted in light of those purposes.         In other words, a rule

implementing a constitutional right must be interpreted consistently with

the aim and purpose of the particular constitutional right implemented.

      The right to a speedy trial was designed to minimize the fears and

burdens associated with a criminal prosecution, not those associated

with a brief detention of a person by police for suspected criminal

conduct that gives rise to fears of a future criminal prosecution.      The

speedy-trial right exists primarily

      to minimize the possibility of lengthy incarceration prior to
      trial, to reduce the lesser, but nevertheless substantial,
      impairment of liberty imposed on an accused while released
      on bail, and to shorten the disruption of life caused by arrest
      and the presence of unresolved criminal charges.

MacDonald, 

456 U.S. at 8

, 

102 S. Ct. at 1502

, 

71 L. Ed. 2d at 704

.

Similarly, the speedy-indictment rule exists to “ ‘expedite the processing

of pending criminal proceedings.’ ”    United States v. Varella, 

692 F.2d 1352

, 1358 n.4 (11th Cir. 1982) (quoting Hillegas, 

578 F.2d at 456

). It

does not exist to “supervise the exercise by a prosecutor of his

investigative or prosecutorial discretion at a time when no criminal

proceeding is pending before the court.” Hillegas, 

578 F.2d at 456

. The
                                    22

government has traditionally been given substantial discretion under the

separation-of-powers doctrine in decisions relating to the timing of an

arrest. See United States v. Mays, 

549 F.2d 670, 678

 (9th Cir. 1977).

      Originally, Iowa’s speedy-indictment rule was written to make it

clear that the time for the filing of the indictment was not triggered the

moment a person reasonably believed an arrest had occurred. The rule

first arose by statute and was triggered when a person was “held to

answer” for a public offense. See 

Iowa Code § 795.1

 (1975). The “held to

answer” standard essentially meant the person was held to answer by a

preliminary examination. State v. Montgomery, 

232 N.W.2d 525

, 526–27

(Iowa 1975). The concept of “held to answer” was unrelated to physical

restraint, but concerned the appearance in court to answer the charge.

See Bergman v. Nelson, 

241 N.W.2d 14, 16

 (Iowa 1976).           Thus, the

speedy-indictment rule was triggered based on circumstances that

occurred within the court proceedings that started the criminal

prosecution and supported the obligation of the state to properly proceed

to trial or dismiss the charges.     It was a straightforward approach,

unrelated to conflicting facts and circumstances that can surround a

warrantless arrest.

      In 1976, our legislature repealed the statutory speedy-trial

provisions when it established separate rules of criminal procedure to

govern court proceedings. See 1976 Iowa Acts ch. 1245, § 1301, r. 27

(codified at Iowa Code ch. 813, r. 27 (1979)) (establishing the Iowa Rules

of Criminal Procedure, including speedy-indictment rule). In doing so, it

adopted the speedy-trial dismissal rules as a part of the rules of criminal

procedure, patterned largely on the federal speedy-trial rule.      See 4

John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and

Procedure § 1242, at 298 (1979) [hereinafter Yeager & Carlson].         The
                                      23

federal rule triggered the speedy-indictment requirement from the date of

arrest or the filing of a formal charge against an accused, whichever

occurred first. Hilbert v. Dooling, 

476 F.2d 355, 357

 (2d Cir. 1973). Iowa

followed this approach by adopting the arrest for the commission of a

public offense as the triggering event for the filing of an indictment. See

Iowa Code ch. 813, r. 27(2) (1979).

      Nevertheless, an arrest within the context of the federal speedy-

trial rule has always entailed an accusation so that an “arrest” under the

Federal Act is the point at which a defendant is first charged and held,

physically or in a legal sense, to answer for a charge. See United States

v. Sayers, 

698 F.2d 1128

, 1130–31 (11th Cir. 1983).             As a rule

implementing the constitutional right of an accused to a speedy trial,

federal courts have taken the approach that the speedy-indictment time

restraints were not triggered until a defendant was “the subject of formal

proceedings.” Hillegas, 

578 F.2d at 457

. Likewise, the legislative history

of the Federal Act reflects that Congress proceeded on the “assumption

. . . that any arrested individual would also be a ‘charged’ or ‘accused’

individual.” United States v. Jones, 

676 F.2d 327, 331

 (8th Cir. 1982).

Accordingly, courts have uniformly held that “an arrest or summons

standing alone [is] not enough to trigger the time limitations of the

Speedy Trial Act.” United States v. Francis, 

390 F. Supp. 2d 1069, 1071

(N.D. Fla. 2005).

      Thus, the Iowa legislature adopted its speedy-indictment rule by

using the “arrest” language of the Federal Act, which had a clear, special

meaning compatible with the former “held to answer” language of Iowa’s

statutory speedy-indictment rule.     Moreover, there is no indication the

Iowa legislature otherwise sought to alter the speedy-indictment

approach when it repealed the statute and adopted the rule. See Yeager
                                     24

& Carlson at 298–99 (stating the Iowa rule followed “an approach not

dissimilar from [the] former” statute). Instead, the legislature was merely

bringing its rule in line with the federal approach.

      Today, the majority repeats an error that began thirty years ago

following the adoption of the speedy-indictment rule. The facts of this

case simply make the error much more obvious. Instead of giving the

word “arrest” the full meaning it was intended to have when the rule was

adopted, we have somehow fallen off track by defining the word in the

context of police custody viewed through the eyes of a reasonable person.

We presumed, incorrectly, that an arrest had but one meaning.           As a

result, we are likely the only jurisdiction in the nation to trigger the

requirement to file an indictment based on a case-specific, fact-intensive

analysis of when police action rises to the level of an arrest. Moreover,

this approach has resulted in a host of conflicting decisions in which

“[w]hat is characterized by police as a non-arrest is occasionally found to

constitute an arrest, and vice versa.” 4A B. John Burns, Iowa Practice

Series: Criminal Procedure § 7:3, at 77 (2005). The analysis followed by

the majority totally ignores the absence of any charges and disregards

the purposes of speedy indictment. Not only is such a loose standard

unnecessary and detached from the purpose and aim of the right to a

speedy trial, it is largely unprincipled and capable of inconsistent results.

See, e.g., id. § 7:3, at 77–80 (describing numerous cases in Iowa in which

the standard rendered inconsistent application); compare State v. Davis,

525 N.W.2d 837, 839

 (Iowa 1994) (applying rule to OWI, first offense,

prosecution to deny State’s request to toll indictment period, even though

defendant was released without charges), with State v. Lasage, 

523 N.W.2d 617, 620

 (Iowa Ct. App. 1994) (applying rule to first-degree
                                   25

murder prosecution to toll the speedy-indictment period when defendant

was released without charges).

      The error by the majority can perhaps be best revealed by the

unimaginable reversal of roles created by its analysis.    The majority

literally places the power to commence a criminal prosecution in the

hands, or mind, of the accused. Under the analysis by the majority, the

reasonable belief of a person detained by police that he or she has been

arrested for an unnamed criminal act forces the prosecutor to

expeditiously bring an indictment against the person, even though the

prosecutor never wanted to indict the person and the police never wanted

to initiate a criminal prosecution. This is the type of circumstance that

results when rules and statutes become disconnected from their purpose

and intent.

      In this case, Wing was never subjected to the burdens sought to be

protected by the speedy-trial guarantee.    When he was taken home

instead of taken to the police station, he was “in the same position as

any other subject of a criminal investigation.” MacDonald, 456 U.S. at 8–

9, 

102 S. Ct. at 1502

, 

71 L. Ed. 2d at 704

. Although the event may have

caused “stress, discomfort, and perhaps a certain disruption in normal

life,” he was “not impaired to the same degree as . . . after [an] arrest

while charges are pending.” 

Id. at 9

, 

102 S. Ct. at 1502

, 

71 L. Ed. 2d at 704

. His situation did “ ‘not compare with that of a defendant who has

been arrested and held to answer.’ ”    

Id.

 (quoting Marion, 

404 U.S. at 321

, 

92 S. Ct. at 464

, 

30 L. Ed. 2d at 479

). He was in the same position

as any other person under investigation for a criminal offense whose

right to a speedy indictment has not yet attached. 

Id.

 at 8–9, 

102 S. Ct. at 1502

, 

71 L. Ed. 2d at 704

. Moreover, any actual prejudice due to any

delay by the prosecution in later bringing charges is a separate issue
                                    26

fully protected “by the Due Process Clause and by statutes of

limitations.” 

Id. at 8

, 

102 S. Ct. at 1502

, 

71 L. Ed. 2d at 704

.

      Finally, even assuming the legislature did intend to create a

unique speedy-indictment rule triggered by the point in time in which a

reasonable person believed an arrest had occurred, the record clearly

shows no such arrest took place.      For sure, a reasonable person who

would have observed Wing being removed from the car after the police

discovered drugs in the trunk, placed in handcuffs, read his Miranda

rights, and even placed in the backseat of the police vehicle would

reasonably believe an arrest had occurred. Yet, the reasonable-person

test considers all the relevant facts and circumstances. See, e.g., State v.

Bogan, 

774 N.W.2d 676, 680

 (Iowa 2009) (recognizing the reasonable-

person custody determinations for purposes of Miranda involve an

objective analysis of all the facts and circumstances); State v. Delockroy,

559 N.W.2d 43, 46

 (Iowa Ct. App. 1996) (examining all facts and

circumstances of police encounter to determine whether an arrest

occurred). In this case, a reasonable person with knowledge of the rest

of the story surrounding the stop would conclude differently.           The

remainder of the facts and circumstances that complete the story of

Wing’s police encounter are that the police had no intention or desire to

use the roadside stop to make an arrest but only wanted to establish a

relationship with Wing, who was known by police to be involved with

drugs, which might benefit an ongoing community task force operation.

Furthermore, a reasonable person viewing the totality of this encounter

would also know Wing was not told at any time he was under arrest or

that he would be charged with a crime, and that Wing was transported to

his home from the roadside stop to continue to go on with his life without

the burdens associated with a criminal prosecution.         See Iowa Code
                                     27

§ 804.14 (2007) (requiring a person making an arrest to “inform the

person to be arrested of the intention to arrest”); id. § 804.22 (requiring a

person placed under arrest to be brought before a magistrate without

unnecessary delay).    The majority failed to consider the totality of the

circumstances, which clearly show Wing was never arrested.          Instead,

Wing was detained and released without being subjected to the process

of the criminal justice system that accompanies an arrest.

      This case was an opportunity to correct a mistake and make the

law conform to its purpose and aim.          I dissent because it was an

opportunity we should have taken.