IN THE SUPREME COURT OF IOWA
No. 12–1150
Filed July 18, 2014
STATE OF IOWA,
Appellee,
vs.
JUSTIN DEAN SHORT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Plymouth County,
James D. Scott (suppression), and Jeffrey A. Neary (trial), Judges.
A criminal defendant seeks further review of a court of appeals
decision affirming a district court’s admission of evidence collected by
law enforcement officers in probationer defendant’s home based upon
reasonable suspicion of criminal activity under the Iowa Constitution.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
Mark C. Smith, Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant
Attorney General, Darin J. Raymond, County Attorney, for appellee.
2
APPEL, Justice.
In this case, we consider the validity of a warrantless search of a
probationer’s home by police officers. The defendant was charged with
burglary and theft. The defendant filed a motion to suppress,
challenging the admissibility of evidence obtained from the search. The
defendant contended the search warrant was invalid because it
inaccurately described the house to be searched and because an
alteration of the warrant based upon a telephonic conversation with the
issuing judge was invalid. The district court overruled the motion to
suppress. For the reasons expressed below, we reverse the district court
and remand the case for further proceedings.
I. Factual Background and Proceedings.
On May 18, 2011, a Plymouth County deputy sheriff responded to
a report of a burglary of a home. The deputy met with the resident who
reported a number of missing items, including two televisions, two
jewelry boxes with assorted jewelry, a gift card to Minerva’s Restaurant,
and a camera. The deputy’s investigation revealed that a doorjamb had
been broken when the door was apparently forced open. There was a
partial shoe print on the outside of the door and partial fingerprints on
the door. Tire impressions were found going from the concrete driveway
into the grass along the side of the house.
Law enforcement contacted Minerva’s Restaurant and advised that
a $100 gift card had been stolen. Based on their inquiries, sheriff
deputies obtained a receipt from the restaurant that was generated from
the gift card’s use. Justin Short’s signature appeared on the receipt.
Deputies also interviewed the waitress and the manager, who identified a
photo of Short as the person who used the card.
3
Deputies received an informant’s tip that the car of Short’s
girlfriend, Lorenzen, was parked at 2721 Jones Street in Sioux City. Law
enforcement obtained a search warrant for that address from a district
associate judge in Le Mars. The application identified the place to be
searched as a “single story wood frame home white and yellow in color”
with a “single stall garage.” Local police assisting in the search, however,
later reported that Lorenzen did not reside at the location identified on
the warrant. After law enforcement inquired at the address identified on
the warrant, the resident who answered explained that he did not know
Lorenzen or Short but stated that there was an apartment next door and
“people are coming and going from there all the time.” The new location
was a two-story house that had been converted into four apartments.
Deputies then contacted the owner of the apartment building and
learned that Lorenzen had rented an apartment at 2723 ½ Jones Street,
which was the upstairs apartment.
At this point, law enforcement called the judge who issued the
original search warrant and asked if they should return to Le Mars to get
another search warrant. According to the testimony of the law
enforcement officer at the hearing on the motion to suppress, the district
associate judge gave law enforcement verbal authorization to change the
address on the warrant and “to note that this was done telephonically
through the authority of” the issuing judge. Law enforcement scratched
out the address on the original warrant and wrote in the new address.
Law enforcement also scratched through the word “yellow” describing the
house, however they left the description of the place to be searched as “a
single story wood frame home.” No statement was added to the original
warrant indicating that it had been altered pursuant to verbal
authorization of the court.
4
Law enforcement then conducted a search of the apartment at
2723 ½ Jones Street. Upon executing the search, police found two flat
screen televisions, two jewelry boxes taken in the burglary, the stolen
Minerva’s Restaurant gift card, and a receipt in Short’s wallet. After
receiving Miranda warnings, Short admitted that he kicked in the door of
the residence, took the missing items, and pawned some of the items at a
local pawn shop. Short was subsequently charged with burglary and
theft.
During the investigation, law enforcement learned that Short was
on probation related to other crimes. Although probation officials were
contacted in connection with the burglary investigation, they did not
participate in the search. It is undisputed that the search was not a
probationary search, but was instead an investigatory search by law
enforcement related to new crimes.
Short sought to suppress all evidence obtained as a result of the
search. In his brief to the trial court, Short claimed he had a
constitutionally protected expectation of privacy in the apartment; his
probation agreement did not give officers unfettered access to search; the
altered search warrant violated Iowa Code section 808.3 (2011), which
requires that search warrant applications be in writing; and the
statements and evidence gathered during the search should be
suppressed as fruit of an illegal search. The State raised a number of
issues in its resistance, including claiming that the search warrant was
valid even after altered, that exigent circumstances were present to
support the search, and that the waiver in Short’s probation agreement
authorized law enforcement personnel to search the apartment without a
warrant. In its brief, however, the State solely argued that the search
5
was lawful based on reasonable suspicion that Short was involved in the
crime.
The district court entered a detailed ruling. It found that the
application for the original warrant was not tainted, but that the
description of the place to be searched in the original warrant was
inadequate. In so ruling, the district court noted that the warrant
described a single story house with a garage stall and not a two story
house divided into apartment units with a parking lot in back rather
than garage stalls. The description in the altered warrant cured some of
the problems, according to the district court, but it held that the
telephonic authorization to alter the warrant was contrary to Iowa Code
section 808.3. The district court further found that no exigent
circumstances existed to support an exception to the warrant
requirement. On the issue of whether a warrantless search of a
probationer could be upheld in this case, however, the district court held
in favor of the State. The district court reasoned that the officers had
reasonable suspicion to believe that stolen property would be located at
the residence, but that in order to be valid, the search must have been
within the contemplation of the probation agreement. As a result of the
ruling, the evidence obtained during the search was admitted into
evidence and Short was convicted.
Short appealed. We transferred the matter to the court of appeals.
The court of appeals held that the claim under article I, section 8 of the
Iowa Constitution was adequately preserved in the district court. On the
merits the court found that the search of a probationer based upon
reasonable suspicion of criminal activity and based upon the limited
scope of the search was valid under article I, section 8 of the Iowa
Constitution.
6
We granted further review. We now vacate the decision of the
court of appeals, reverse the decision of the district court on the motion
to suppress, and remand the case to the district court.
II. Standard of Review.
Claims that the district court failed to suppress evidence obtained
in violation of the Federal and Iowa Constitutions are reviewed de novo.
State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). The same is true of
claims of ineffective assistance of counsel. State v. Straw, 709 N.W.2d
128, 133 (Iowa 2006).
III. Discussion.
A. Positions of the Parties.
1. Short. Short challenges the denial of the motion to suppress on
appeal. Short first asserts that he had a constitutionally protected
interest in the apartment, the district court correctly determined that the
original search warrant lacked specificity, the district court correctly
determined that the alteration to the warrant pursuant to telephonic
authorization was invalid, and there were no exigent circumstances to
support a warrantless search.
After addressing these issues, Short focuses on the fighting issue
in this case, namely, whether the warrantless search of a probationer’s
home by law enforcement officers violates article I, section 8 of the Iowa
Constitution. Short claims that in State v. Ochoa we emphasized the
property rights underpinning the sanctity of the home and highlighted
that our cases underscore the high importance of a warrant issued by a
neutral and detached magistrate when a home search was involved. 792
N.W.2d 260, 284–85 (Iowa 2010). Short recognizes that the Ochoa court
did not address “whether individualized suspicion amounting to less
than probable cause may be sufficient in some contexts to support a
7
focused search,” id. at 291, but argues that the reasoning in Ochoa
suggests that a warrant requirement for a home invasion by law
enforcement is required, see id. at 287–91.
Short further relies on State v. Cullison, 173 N.W.2d 533 (Iowa
1970). In that case, we invalidated a warrantless search of the home of a
parolee. Id. at 540–41. According to Short, the holding in Cullison,
namely, that the search and seizure rights of a parolee are not reduced
due to his or her status, id. at 538–39, “remained untouched” by Ochoa
and applies with equal force to probationers. Short also notes that the
search in this case was not a probationary search, but was instead a
search by general law enforcement officers, a fact that further
undermines the validity of the search.
Short maintains that the state constitutional issue was adequately
preserved in the district court. In any event, Short argues that if the
issue was not preserved under the Iowa Constitution, his counsel was
ineffective for not raising the issue. See Taylor v. State, 352 N.W.2d 683,
684–85 (Iowa 1984) (describing review of claims of ineffective assistance
of counsel).
2. The State. The State contends that Short did not preserve his
argument below under the Iowa Constitution. It argues that Short did
not argue that the Iowa Constitution should be interpreted differently
from the Fourth Amendment before the district court, and suggests that
the district court’s citation of Ochoa should not be construed to mean
that the Iowa Constitution was duly raised.
The State’s sole argument on the merits of the appeal is that
because the search of a probationer was supported by reasonable
suspicion, the search was constitutionally valid. In support of its
argument, the State cites Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct.
8
3164, 97 L. Ed. 2d 709 (1987), and United States v. Knights, 534 U.S.
112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). In both cases, the United
States Supreme Court upheld warrantless searches of the homes of
probationers based upon reasonable suspicion under the Fourth
Amendment. In Griffin, the Supreme Court upheld a warrantless search
of a probationer by probation officers that was based upon reasonable
suspicion and was performed in compliance with a Wisconsin regulation
authorizing such searches. 483 U.S. at 870–71, 880, 107 S. Ct. at 3167,
3172, 97 L. Ed. 2d at 715–16, 722. In Knights, Griffin was extended to
include searches conducted by general law enforcement officers.
Knights, 534 U.S. at 120–22, 122 S. Ct. at 592–93, 151 L. Ed. 2d at 506–
07. Relying upon Knights and Griffin, the State argues that Short’s claim
under article I, section 8 of the Iowa Constitution lacks merit.
The State recognizes that in Ochoa, we departed from the
interpretations of the United States Supreme Court. See 792 N.W.2d at
287–91. Yet, the State argues that Ochoa did not hold that warrantless
searches were invalid, but only that warrantless searches of parolees
without at least some individualized suspicion were invalid. See id. at
291. The State narrowly interprets Ochoa as indicating acquiescence in
warrantless searches of parolees and probationers based upon
individualized suspicion.
IV. Issue Preservation.
We first begin our discussion of issue preservation with a review of
what issues were not presented by the State in this appeal. The State did
not advance an argument that the warrant originally obtained was not
defective, that the alteration of the warrant did not violate the
requirement of Iowa Code section 808.3, or that exigent circumstances
existed to justify a warrantless search. We need not consider the extent
9
to which these arguments may have had merit, as under our rules and
our precedents they have been waived in this appeal. See Iowa R. App.
P. 6.903(2)(g)(3) (requiring appellant to present arguments and
supportive authority in appeal brief and stating “[f]ailure to cite authority
in support of an issue may be deemed waiver of that issue”); State v.
Seering, 701 N.W.2d 655, 661 (Iowa 2005) (“In the absence of an
argument on these allegations [on appeal], we deem them waived.”);
Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (confining
consideration to issues raised on appeal); Richardson v. Neppl, 182
N.W.2d 384, 390 (Iowa 1970) (“A proposition neither assigned nor argued
presents no question and need not be considered by us on review.”).
Further, although the district court cited Short’s argument that his
probation agreement did not give law enforcement officers unfettered
access to conduct a search, the district court specifically only found that
“the police had the right to search Short’s residence under the terms of
his probation” and therefore, “the search was not unlawful.” The district
court made no finding or holding regarding whether the probation
agreement itself constituted valid consent. Cf. Knights, 534 U.S. at 118–
20 & n.6, 122 S. Ct. at 591–92 & n.6, 151 L. Ed. 2d at 504–05 & n.6
(“We need not decide whether Knights’ acceptance of the search
condition constituted consent in the . . . sense of a complete waiver of his
Fourth Amendment rights . . . because we conclude that the search of
Knights was reasonable under our general Fourth Amendment approach
of ‘examining the totality of the circumstances’ . . . .” (Internal quotation
marks omitted.)). On appeal, the State did not argue that Short
voluntarily consented to the search. The word “consent” does not appear
10
in the State’s brief, 1 nor did the State cite cases where the issue of
consent validated a warrantless search. As a result, the issue of whether
the conditions of probation amounted to a voluntary consent is not
before us.2 See Ochoa, 792 N.W.2d at 292 (finding the State’s failure to
argue on appeal that appellant consented to a search at the door would
ordinarily waive the issue); cf. Parkhurst v. White, 254 Iowa 477, 481,
118 N.W.2d 47, 49 (1962) (“Appellees do not argue the question . . . and
we consider it waived.”). As noted in Feld v. Borkowski, 790 N.W.2d 72,
78 n.4 (Iowa 2010),
in the absence of the most cogent circumstances, we do not
create issues or unnecessarily overturn existing law sua
sponte when the parties have not advocated for such a
1 In
its brief, the State contends that Short “acknowledged his ‘significantly
diminished’ expectation of privacy by signing [the] probation agreement,” which
included a “condition” that Short would “ ‘submit [his] person . . . [and] place of
residence . . . to search at any time, with or without a search warrant . . . by any . . .
law enforcement officer having reasonable grounds to believe contraband is present.’ ”
2 For
instance, a leading treatise explains the majority view is that consent
provisions apply only to searches by parole or probation officers and not to searches by
police officers, but also cites cases to the contrary. William E. Ringle, Searches and
Seizures, Arrests and Confessions § 17:8 & n.31, at 17-32 (2d ed. 2004). At least two
cases hold that search provisions in probation conditions are coerced and cannot be
enforced. See People v. Peterson, 233 N.W.2d 250, 255 (Mich. Ct. App. 1975); Tamez v.
State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976). Yet another court has ruled that a
probation condition may be enforced only to the extent there is reasonable suspicion
and when traditionally a search warrant has not been required. Commonwealth v.
LaFrance, 525 N.E.2d 379, 383 (Mass. 1988). Another approach is that court-ordered
probation conditions may permit warrantless searches, but the evidence is admissible
only in a probation proceeding. Grubbs v. State, 373 So. 2d 905, 909–10 (Fla. 1979). In
another case, the court emphasized that search and seizure conditions on probation
should be “sparingly imposed and . . . reasonably related to the offense for which the
defendant was convicted” and that where this requirement was met, and the condition
was clearly explained to him before signing, the provision was enforceable. State v.
Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980). Another court has suggested that
search and seizure provisions in probation agreements may be valid “except when
procured by fraud, duress, fear, or intimidation or when it is merely a submission to the
supremacy of the law.” Rivera v. State, 667 N.E.2d 764, 766 (Ind. Ct. App. 1996).
There is no factual record and no briefing before us that would allow us to explore these
interesting permutations of the consent issue.
11
change . . . . [W]e are restrained to apply the controlling law
as advocated by the parties . . . .
(Citation omitted.) It is important that our waiver rules be consistently
applied in all cases and that we not apply special rules for certain parties
without a principled basis for doing so.3
We now turn to issue preservation questions related to Short’s
claims. The State suggests that the constitutionality of the search under
article I, section 8 of the Iowa Constitution was not presented to the
district court. In his motion to suppress, however, Short specifically
cited article I, section 8 of the Iowa Constitution as the basis for his
argument that the search was invalid because there was no effective
warrant. Further, the district court appears to have recognized the state
constitutional argument in its opinion when it extensively discussed
Ochoa, a case solely involving article I, section 8 of the Iowa Constitution,
see 792 N.W.2d at 284–86. It is clear that Short was claiming to the
district court that a warrant was required for the search under the Iowa
Constitution. We therefore agree with the court of appeals that the issue
presented on appeal was adequately preserved. See Lamasters v. State,
821 N.W.2d 856, 864 (Iowa 2012) (“If the court’s ruling indicates that the
court considered the issue and necessarily ruled on it, even if the court’s
reasoning is incomplete or sparse, the issue has been preserved.”
(Internal quotation marks omitted.)); State v. Paredes, 775 N.W.2d 554,
561 (Iowa 2009) (“[W]here a question is obvious and ruled upon by the
district court, the issue is adequately preserved.”).
3 No
party, for instance, asks us to revisit Racing Ass’n of Central Iowa v.
Fitzgerald, 675 N.W.2d 1 (Iowa 2004), Ochoa, 792 N.W.2d 260, State v. Pals, 805
N.W.2d 767 (Iowa 2011), or State v. Baldon, 829 N.W.2d 785 (Iowa 2013).
12
V. Warrantless Searches of the Homes of Probationers by Law
Enforcement Officers.
A. Introduction. The larger question of whether law enforcement
officers may search a probationer’s home without a valid warrant under
the facts of this case depends upon resolution of two subsidiary
questions. The first question is whether a warrantless search of a
probationer’s home is permissible when, as here, reasonable suspicion of
criminal activity is present. If the answer to this question is yes, a
second question emerges—namely, whether law enforcement officers, as
distinguished from probation officers, may conduct the search.
In considering these issues under article I, section 8 of the Iowa
Constitution, we reach our decisions independently of federal
constitutional analysis. We may, of course, consider the persuasiveness
of federal precedent, but we are by no means bound by it. See Ochoa,
792 N.W.2d at 267 (“The degree to which we follow United States
Supreme Court precedent, or any other precedent, depends solely upon
its ability to persuade us with the reasoning of the decision.”); see also
State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). We may look to the
caselaw of other states, to dissenting opinions of state and federal courts,
and to secondary materials for their persuasive power. See State v.
Baldon, 829 N.W.2d 785, 792–800 (Iowa 2013) (considering secondary
sources and court decisions from other states); Ochoa, 792 N.W.2d at
276–87 (discussing state caselaw, federal dissenting opinions, and
academic commentary).
B. Established Principles of Independent State Constitutional
Law.
1. Introduction. Neither party has questioned or sought to limit
our responsibility to independently construe the Iowa Constitution.
13
Neither party, for example, has suggested on appeal that this court’s
approach to independent state law as outlined in Ochoa, Pals, or Baldon
is incorrect or should be modified. Our approach to reviewing
independent state constitutional claims was thoroughly explored in
Baldon, Pals, and Ochoa. See Baldon, 829 N.W.2d at 803–35 (Appel, J.,
concurring specially); Pals, 805 N.W.2d at 771–72; Ochoa, 792 N.W.2d at
264–67, 287–91. For the purpose of clarity and emphasis, we review the
principles of our independent state constitutional jurisprudence reflected
in these cases.
2. States’ constitutions as the original protectors of individual
rights; the Federal Constitution as the follower of state tradition. At the
outset, we note that state constitutions and not the Federal Constitution
were the original sources of written constitutional rights. See Baldon,
829 N.W.2d at 803–09 (Appel, J., concurring specially). For example,
eight state constitutions had provisions related to search and seizure
prior to the adoption of the Federal Constitution. Bernard Schwartz, The
Great Rights of Mankind: A History of the American Bill of Rights 88
(expanded ed. 1992). John Adams, who attended oral argument by
James Otis in Paxton’s Case, was the drafter of article XIV of the
Massachusetts Constitution of 1780, one of the important state
constitutional precursors of the Fourth Amendment. See Baldon, 829
N.W.2d at 805–06.
At the federal constitutional convention, whenever the issue of
individual rights arose, the founders repeatedly expressed the view that
they looked to the states for the preservation of individual rights. James
Wilson declared that the purpose of the states was “ ‘to preserve the
rights of individuals.’ ” Baldon, 829 N.W.2d at 808 (quoting 1 Records of
the Federal Convention of 1787, at 356 (Max Farrand ed., 1937)). Oliver
14
Ellsworth, who would later become Chief Justice of the United States
Supreme Court, declared at the constitutional convention that “ ‘he
turned his eyes’ ” to state governments “ ‘for the preservation of his
rights.’ ” Paul Finkelman & Stephen E. Gottlieb, Introduction: State
Constitutions and American Liberties, in Toward a Usable Past: Liberty
Under State Constitutions 1, 4 (Paul Finkelman & Stephen E. Gottlieb
eds., 1991). James Madison, in The Federalist No. 45, declared that
“ ‘[t]he powers reserved to the several States will extend to all the objects,
which, in the ordinary course of affairs, concern the lives, liberties, and
properties of the people . . . .’ ” Baldon, 829 N.W.2d at 808 (quoting The
Federalist No. 45, at 363 (James Madison) (John C. Hamilton 1868)).
Given the primary role of the states in developing individual rights,
it is not surprising that, “prior to the adoption of the federal Constitution,
each of the rights eventually recognized in the federal Bill of Rights had
previously been protected in one or more state constitutions.” William J.
Brennan Jr., State Constitutions and the Protection of Individual Rights,
90 Harv. L. Rev. 489, 501 (1977). As noted by a leading scholar in the
area, there is now an emerging consensus that the Federal Bill of Rights
originated in state and colonial rights guarantees. See Robert F.
Williams, The State Constitutions of the Founding Decade: Pennsylvania’s
Radical 1776 Constitution and Its Influences on American
Constitutionalism, 62 Temp. L. Rev. 541, 541 (1989) (“Constitutional
scholars have long recognized that many of the features of the United
States Constitution were modeled on the earlier state constitutions.”).
The provisions of the Bill of Rights, including the Fourth Amendment,
were modeled by state constitutional provisions, and not vice versa as is
commonly assumed. See Steven G. Calabresi et al., State Bills of Rights
in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in
15
American History and Tradition?, 85 S. Cal. L. Rev. 1451, 1452–53 (2012)
(noting that rights in the Federal Bill of Rights emerge from state and
colonial bills of rights).
3. Strong emphasis on individual rights under the Iowa
Constitution. The bill of rights in the Iowa Constitution was not
considered by Iowa constitutional writers as some kind of appendage
controlled by federal court interpretations. Unlike the Federal
Constitution, the bill of rights was part of the first articles of the Iowa
Constitutions of 1846 and 1857.4 According to George Ells, Chair of the
Committee on the Preamble and Bill of Rights, “the Bill of Rights is of
more importance than all the other clauses in the Constitution put
together, because it is the foundation and written security upon which
the people rest their rights.” 1 The Debates of the Constitutional
Convention of the State of Iowa 103 (W. Blair Lord rep., 1857) [hereinafter
The Debates], available at www.statelibraryofiowa.org/services/
collections/law-library/iaconst. Article I, section 1, borrowed from the
Virginia Declaration of Rights, speaks of “inalienable rights” that are
presumably beyond the reach of majoritarian government. See Iowa
Const. art. I, § 1; Virginia Declaration of Rights (1776), available at
http://www.archives.gov/exhibits/charters/virginia_declaration_of_right
s.html. Article I, section 8 of the Iowa Constitution of 1857 mirrors the
language of the Fourth Amendment except for a semicolon that was
placed between the reasonableness clause and the warrant clause in the
Iowa Constitution. Compare U.S. Const. amend. IV, with Iowa Const.
art. I, § 8. This semicolon suggests the framers believed that there was a
relationship between the reasonableness clause and the warrant clause,
4We will refer to the Iowa Constitution of 1857 as the Iowa Constitution.
16
much as was the case with the original search and seizure provision of
the Massachusetts Constitution of 1780. See Ochoa, 792 N.W.2d at 268–
69 & n.7.
Indeed, there is powerful evidence that the Iowa constitutional
generation did not believe that Iowa law should simply mirror federal
court interpretations. While the due process clause of article I, section 9
of the Iowa Constitution was similar to the Due Process Clause of the
United States Constitution, Ells noted that the clause was “violated again
and again by the dominant party in the land, which rides rough-shod
ove[r] the necks of freemen.” The Debates at 102. Further, Ells noted
that
[i]f the words ‘due process of law,’ shall in time be recognized
by our judicial tribunals to mean what they really do mean .
. . [t]hen, sir, that infamous Fugitive Slave Law will become a
nu[l]lity, and the American people will trample its odious
enactments in the dust.
Id. Of course, during this time period the United States Supreme Court
upheld the Fugitive Slave Law from constitutional attack. See, e.g.,
Ableman v. Booth, 62 U.S. (21 How.) 506, 526, 16 L. Ed. 169, 177 (1858)
(“[T]he act of Congress commonly called the fugitive slave law is, in all of
its provisions, fully authorized by the Constitution of the United States
. . . .”).
As has often been celebrated, the first decision of the Supreme
Court of the Territory of Iowa, In re Ralph, rejected the claim that a slave
present in a free state should be returned to his master, noting that
under Iowa law a slave within the free territory of Iowa is not “property”
and that the laws regarding illegal restraint apply “to men of all colors
and conditions.” 1 Morris 1, 7 (Iowa 1839). Counsel for Ralph urged
that as a result of the organic law (specifically referring to the territorial
17
constitutions of Wisconsin and Iowa), Ralph was a free man. Id. at 2.
Specifically, counsel asserted that under the organic law of Iowa and
Wisconsin, “ ‘[n]o man shall be deprived of his liberty, or property, but by
the judgment of his peers, or the law of the land.’ ”5 Id. (quoting the
Northwest Ordinance of 1787, art. 2, in 32 Journals of the Continental
Congress 1774–1789, at 340 (Roscoe R. Hill, ed. 1936) [hereinafter
Journals]). He further argued that under the organic law, “There shall be
neither slavery nor involuntary servitude in the said territory . . . .” Id.
(quoting the Northwest Ordinance of 1787, art. 6, in Journals at 343).
The Iowa court held for Ralph. Id. at 7. In closing, however, the
court emphasized that when a person “illegally restrains a human being
of his liberty, it is proper that the laws, which should extend equal
protection to men of all colors and conditions, should exert their
remedial interposition.” Id. The decision in In re Ralph flatly
contradicted the infamous Dred Scott decision of the United States
Supreme Court in 1857. See Dred Scott v. Sanford, 60 U.S. (19 How.)
393, 451, 15 L. Ed. 644, 691 (1856) (“[T]he right of property in a slave is
distinctly and expressly affirmed in the Constitution.”), superseded by
constitutional amendment, U.S. Const. amend. XIV; In re Ralph, 1 Morris
at 7.
While Dred Scott was decided after the Iowa Constitutional
Convention of 1857 adjourned, the first state legislature convened under
5As
explained by Shaumbaugh, the bill of rights set forth in the Constitution of
the Territory of Iowa was “exceedingly brief” and consisted solely of incorporation of the
rights, privileges, and immunities granted to the Territory of Wisconsin. See
Benjamin F. Shambaugh, The History of the Constitutions of Iowa 116 (1902). The
Constitution of the Territory of Wisconsin, in turn, incorporated the provisions of the
Northwest Ordinance of 1787, which contained a bill of rights. Id. at 116–17. As a
result, “the provisions of the Ordinance of 1787 are by implication made part of the
Constitution of the Territory of Iowa.” Id. at 117–18.
18
the new Iowa Constitution expressed its view on the Dred Scott decision
and its reasoning. The Iowa legislature declared in a resolution that “the
case of Dred Scott, is not binding in law or conscience upon the
government or people of the United States,” and that
we should be ungrateful to those whose care and foresight
provided for us free homes, and derelict in our duty to those
who still come after us, did we not promptly and sternly
denounce this new doctrine, which if established, degrades
the free states.
1858 Iowa Acts Res. 12, at 433. We have not found a record of the
debate on the resolution, but there is little doubt that an argument that
Iowa courts should defer to Dred Scott in the interpretation of the Iowa
Constitution as presumptively valid would not have received a favorable
reception.
The independent authority of state courts to construe state
constitutional provisions free from federal precedent was early recognized
in McClure v. Owen, 26 Iowa 243, 254–55 (1868). In McClure, we stated:
The same principles that require the federal courts to follow
the decisions of the State courts in construing statutes, and
to recognize rules of local law, require the federal courts to
follow the construction given the [state] Constitution by the
highest state tribunal.
Id. at 255. As is often celebrated, our subsequent cases dealing with the
rights of African Americans adopted an approach much different than
the United States Supreme Court ultimately adopted in Plessy v.
Ferguson, 163 U.S. 537, 540–52, 16 S. Ct. 1138, 1139–44, 41 L. Ed. 256,
257–61 (1896) (upholding state law requiring separate but equal
accommodations for white and nonwhite railway passengers as
constitutional against challenges under the Thirteenth and Fourteenth
Amendments), overruled by Brown v. Board of Education, 347 U.S. 483,
19
494, 74 S. Ct. 686, 692, 98 L. Ed. 873, 880–81 (1954) (rejecting the
separate but equal doctrine in the context of public education). See
Coger v. Nw. Union Packet Co., 37 Iowa 145, 154–57 (1873) (citing article
I, section 1 of the Iowa Constitution in rejecting the notion that African
Americans could be subjected to different treatment in public
transportation); Clark v. Bd. of Dirs., 24 Iowa 266, 276–77 (1868)
(rejecting the argument that a school district could forbid African-
American children from attending school on the ground of race). In State
v. Tonn, we emphasized that we were free to depart from federal
constitutional analysis in considering the search and seizure provision of
the Iowa Constitution. See 195 Iowa 94, 104–07, 191 N.W. 530, 535–36
(1923) (recognizing the decided weight of state authority against the rule
of a federal case and determining we would forge a different path),
abrogated on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81
S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1089–90 (1961).
4. The diminution in substance of federal rights resulting from
incorporation triggers renewal of independent state constitutional law.
Beginning with Gitlow v. New York, the United States Supreme Court
began to incorporate against the states various provisions of the Bill of
Rights under the Due Process Clause of the Fourteenth Amendment.
268 U.S. 652, 666, 45 S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925)
(“[W]e may and do assume that freedom of speech and of the press—
which are protected by the First Amendment from abridgment by
Congress—are among the fundamental rights . . . protected by the Due
Process Clause of the Fourteenth Amendment from impairment by the
states.”). The incorporation of the Bill of Rights, however, created a
tendency for the United States Supreme Court to dilute the substance of
the rights themselves. See Baldon, 829 N.W.2d at 813 (“In the period
20
following the incorporation revolution ending with Mapp, there is no
doubt the strength and scope of the Fourth Amendment’s protection has
been dramatically reduced by the United States Supreme Court.”). Any
review of the relationship between state and federal constitutional
interpretation that fails to understand or ignores this fundamental and
powerful legal riptide is flawed.
In a series of opinions, Justice Harlan presciently predicted that
one of the unintended consequences of the extension of federal
constitutional rights to the states would be their dilution. Williams v.
Florida, 399 U.S. 117, 136, 90 S. Ct. 1914, 1925, 26 L. Ed. 2d 446, 474
(1970) (Harlan, J., dissenting) (recognizing the decision to allow a six
person jury “simply reflects the lowest common denominator in the scope
and function of the right to trial by jury”); Duncan v. Louisiana, 391 U.S.
145, 182 n.21, 88 S. Ct. 1444, 1466 n.21, 20 L. Ed. 2d 491, 514 n.21
(1968) (Harlan, J., dissenting) (noting “a major danger of the
‘incorporation’ approach—that provisions of the Bill of Rights may be
watered down in the needless pursuit of uniformity”); Ker v. California,
374 U.S. 23, 45, 83 S. Ct. 1623, 1646, 10 L. Ed. 2d 726, 745 (1963)
(Harlan, J., concurring in judgment) (pondering whether the United
States Supreme Court “[was] prepared to relax Fourth Amendment
standards in order to avoid unduly fettering the States”).
We have seen the federalism discount predicted by Justice Harlan
operate with full force in the search and seizure context. Since
incorporation, the relatively clear requirements of the Warrant Clause
have been overridden by vague notions of reasonableness, the role of
consent has changed from its narrow beginnings to a more protean
formulation, and the exclusionary rule has been substantially eroded by
a good faith exception. See California v. Acevedo, 500 U.S. 565, 582–83,
21
111 S. Ct. 1982, 1992–93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J.,
concurring in judgment) (recognizing development of nearly two dozen
exceptions to the warrant requirement); United States v. Leon, 468 U.S.
897, 923–24, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677, 699 (1984)
(announcing the “good faith exception” to the exclusionary rule);
Schneckloth v. Bustamonte, 412 U.S. 218, 234–46, 93 S. Ct. 2041, 2056–
58, 36 L. Ed. 2d 854, 872–74 (1973) (departing from the narrow consent
doctrine established in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461, 1466 (1938)). See generally Baldon, 829
N.W.2d at 812–14 (“Nothing in the Supreme Court’s incorporation
doctrine as it related to the Fourth Amendment altered the independent
nature of state constitutional provisions related to search and seizure
. . . . Incorporation of the provisions of the Bill of Rights of the United
States Constitution against the states through the Due Process Clause of
the Fourteenth Amendment established a federal floor related to civil
liberties.”); George C. Thomas III, When Constitutional Worlds Collide:
Resurrecting the Framers’ Bill of Rights and Criminal Procedure, 100 Mich.
L. Rev. 145, 150–51 (2001) (observing that after incorporation of the Bill
of Rights, “the dilution of [the Bill of Rights] flowed backward[s]” and that
“the process of incorporation took a sledgehammer to the federal criminal
procedure guarantees”). According to Professor Williams, decisions of the
United States Supreme Court declining to recognize rights “must always
be viewed as partially attributable to ‘underenforcement’ ” as a result of
federalism and other institutional concerns that explicitly or implicitly
pervade Supreme Court decisions. Robert F. Williams, The Law of
American State Constitutions 137 (2009) [hereinafter Williams]; cf. State v.
Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring) (noting
22
hesitancy of the United States Supreme Court “to impose on a national
level far-reaching constitutional rules binding on each and every state”).
As a result of the United States Supreme Court’s retreat in the
search and seizure area, there has been a sizeable growth in independent
state constitutional law. A survey of jurisdictions in 2007 found that a
majority of the state supreme courts have departed from United States
Supreme Court precedents in the search and seizure area to some
degree. See generally Michael J. Gorman, Survey: State Search and
Seizure Analogs, 77 Miss. L.J. 417 (2007). There are now hundreds of
independent state constitutional search and seizure cases, and the
number grows over time. Because of the tendency of the United States
Supreme Court to underenforce or dilute search and seizure principles, it
can be argued that these precedents are “entitled to less weight than
other state decisions interpreting similar state constitutional law
provisions.” Williams at 137; cf. State v. Black, 815 S.W.2d 166, 193
(Tenn. 1991) (Reid, C.J., concurring in part and dissenting in part)
(“Tennessee constitutional standards are not destined to walk in lock
step with uncertain and fluctuating federal standards and do not relegate
Tennessee citizens to the lowest levels of constitutional protection, those
guaranteed by the national constitution.”).
The growth of independent state constitutional law, however, has
not been universally celebrated. As Professor Williams has bemoaned,
adoption of independent state constitutional law has occasionally
provoked what Williams has called a “bitter, accusatorial” dissent.
Williams at 180 (citing People v. Scott, 593 N.E.2d 1328, 1348–49 (N.Y.
1992) (Bellacosa, J., dissenting)). Yet, as was noted twenty years ago in
connection with independent state constitutional law, “heightened
rhetoric adds nothing to the jurisprudence of our State.” State v. Canelo,
23
653 A.2d 1097, 1106 (N.H. 1995) (Johnson, J. concurring specially).
And, according to a leading authority on state constitutions, writing in
1998, the concern about the legitimacy of relying on state constitutional
guarantees “has largely been put to rest.” G. Alan Tarr, Understanding
State Constitutions 169 (1998).
5. The aggressive, maximalist character of lockstep approach as
“precommitment device” preventing independent examination of facts and
law. One question is whether state courts should engage in independent
state constitutional analysis when the language of their state
constitutional provisions are similar or identical to their federal
counterparts. There is ample precedent for the notion that the mere
similarity of language does not prevent state courts from engaging in
independent analysis. See, e.g., State v. Gershoffer, 763 N.E.2d 960, 965
(Ind. 2002) (“The Indiana Constitution has unique vitality, even where its
words parallel federal language.”); People v. Barber, 46 N.E.2d 329, 331
(N.Y. 1943) (recognizing the court was bound to exercise independent
judgment under the state constitution); State v. Arrington, 319 S.E.2d
254, 260 (N.C. 1984) (noting the court was not bound by the United
States Supreme Court’s construction of identical constitutional
provisions); Commonwealth v. Edmunds, 586 A.2d 887, 894–95 (Pa.
1991) (stating the court was free to reject United States Supreme Court
conclusions if it remained faithful to the Federal Constitution’s minimum
guarantees).
The notion that parallel language in the Iowa Constitution is not
tied to United States Supreme Court interpretations in the search and
seizure area was powerfully endorsed by Judge Sutton of the United
States Court of Appeals for the Sixth Circuit, who wrote in a published
article:
24
There is no reason to think, as an interpretive matter, that
constitutional guarantees of independent sovereigns, even
guarantees with the same or similar words, must be
construed the same. Still less is there reason to think that a
highly generalized guarantee, such as prohibition on
“unreasonable” searches, would have just one meaning for a
range of differently situated sovereigns.
Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional
Law, 59 U. Kan. L. Rev. 687, 707 (2011). Judge Sutton further asks why
we should live in a “top-down constitutional world,” when allowing states
to decide whether to embrace or accept innovative legal claims can
inform the United States Supreme Court when considering whether to
federalize the rule. Id. at 712–13 (internal quotation marks omitted).
Indeed, according to Professor Williams, lockstepping state law to
federal precedents is not a humble or minimalist approach, but is an
aggressive and maximalist approach to the law. See Williams at 224–29
(discussing several problems to the lockstepping approach). It amounts
to what Professor Adrian Vermeule refers to as a “precommitment device”
that prevents a state supreme court from considering each case based on
an independent examination of facts and law. See Adrian Vermeule, The
Judicial Power in the State (and Federal) Courts, 2000 Sup. Ct. Rev. 357,
366 (2000).
6. The double irony in the appeal to uniformity. The independent
state law cases also address the question of the value of uniformity.
First, it is doubtful that uniformity is a constitutional value in a federal
system. Indeed, diversity of constitutional analysis is baked into the
constitutional cake where states retain sovereign authority over
questions not delegated to the federal government by the United States
Constitution. As noted by Professor Williams, reliance on decisions of
the United States Supreme Court to interpret state constitutional
provisions is “misplaced” and an “unwarranted delegation of state power
25
to the Supreme Court.” Robert F. Williams, In the Supreme Court’s
Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and
Result, 35 S.C. L. Rev. 353, 403–04 (1984). In an era when societies
advocate renewal of federalism by returning power to the state, it is
ironic that an exception is made for state judicial power.
There is a second irony. Although the claim is sometimes made
that adoption of the United States Supreme Court’s approach in the
search and seizure area will promote uniformity or ease of
administration, the opposite is in fact true. Consider this. The
jurisprudence of the United States Supreme Court in the search and
seizure area has been characterized by scholars as “not merely complex
and contradictory, but often perverse.” Akhil Reed Amar, Fourth
Amendment First Principles, 107 Harv. L. Rev. 757, 758 (1994). 6 These
descriptions have resulted, in part, because the United States Supreme
Other commentators have expressed similar criticism of Federal Fourth
6
Amendment jurisprudence. See, e.g., Ronald J. Allen & Ross M. Rosenberg, The Fourth
Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72
St. John’s L. Rev. 1149, 1149 (1998) (“a mess”); Craig M. Bradley, Two Models of the
Fourth Amendment, 83 Mich. L. Rev. 1468, 1468 (1985) (“a mass of contradictions and
obscurities”); Thomas K. Clancy, The Fourth Amendment’s Concept of Reasonableness,
2004 Utah L. Rev. 977, 978 (2004) (“irreconcilable”); Jennifer Friesen, State Courts as
Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L.
Rev. 1065, 1092 (1997) (“illogical and unwieldy”); Orin S. Kerr, Four Models of Fourth
Amendment Protection, 60 Stan. L. Rev. 503, 504–05 (2007) (“remains remarkably
opaque”); Erik G. Luna, Sovereignity and Suspicion, 48 Duke L.J. 787, 787–88 (1999)
(“more duct tape on the Amendment’s frame and a step closer to the junkyard”); Donald
R.C. Pongrace, Stereotypification of the Fourth Amendment’s Public/Private Distinction:
An Opportunity for Clarity, 34 Am. U. L. Rev. 1191, 1208 (1985) (“in a state of theoretical
chaos”); Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. Rev. 1511, 1511
(2010) (“riddled with inconsistency and incoherence”); David E. Steinberg, The Uses and
Misuses of Fourth Amendment History, 10 U. Pa. J. Const. L. 581, 581 (2008) (“doctrinal
incoherence of Fourth Amendment law” “disturbs many judges and scholars”); Silas J.
Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional
Theory, 77 Geo. L.J. 19, 29 (1988) (“inconsistent and bizarre results”); and Richard G.
Wilkins, Defining the “Reasonable Expectation of Privacy”: An Emerging Tripartite
Analysis, 40 Vand. L. Rev. 1077, 1107 (1987) (“distressingly unmanageable”).
26
Court has applied at least five different analytical models to search and
seizure cases, based upon the warrant requirement, individualized
suspicion, case-by-case analysis, a balancing test, and an approach
relying on common law plus balancing. See Thomas K. Clancy, The
Fourth Amendment: Its History and Interpretation 470–511 (2008). Even
members of the Supreme Court have characterized its Fourth
Amendment jurisprudence as “an inconsistent jurisprudence that has
been with us for years.” Acevedo, 500 U.S. at 583, 111 S. Ct. at 1993,
114 L. Ed. at 636 (Scalia, J., concurring in judgment).
If these authorities are only half right, incorporation of the body of
federal law under the Iowa Constitution will incorporate confusion, not
certainty. Cf. State v. Caraher, 653 P.2d 942, 946 (Or. 1982) (“Eight
years of uniformity with U.S. Supreme Court decisions has not, however,
brought simplification to the law of search and seizure in this state.”);
Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 14–15
(Tenn. 2000) (noting Tennessee constitutional standards not designed to
walk in lockstep with “uncertain and fluctuating federal standards”);
State v. Jackson, 937 P.2d 545, 550 (Utah Ct. App. 1997) (noting two
Utah Supreme Court departures from United States Supreme Court
search and seizure precedent, done for purpose of establishing more
workable rule for police and trial courts). See generally 1 Jennifer
Friesen, State Constitutional Law: Litigating Individual Rights, Claims,
and Defenses § 1:03[4][b], at 1-16 (4th ed. 2006) [hereinafter Friesen]
(“Independent holdings in the states can, and do, bring stability and
simplicity to constitutional law in the face of frequent, baffling
inconsistencies and changes in Supreme Court doctrines.”). Indeed, a
stronger, clearer warrant requirement, such as advocated by Short in
this case, will create greater, not less, uniformity and certainty.
27
7. The burdens on law enforcement and lawyers. The lack of
uniformity does not create a substantial burden on professional law
enforcement who now receive professional training and are assisted by
well-educated county attorneys in their law enforcement functions.
Further, law enforcement officers need to be acquainted only with one
standard, namely, whatever standard is most restrictive. See 1 Friesen
§ 1.03[4][b], at 1-15. There is simply no reason to believe that Iowa law
enforcement is less capable than its counterparts in states such as New
York, New Jersey, Washington, or Oregon, where independent state
constitutional law has been embraced by the state courts. See Baldon,
829 N.W.2d at 814–15.
It could be asserted that independent state constitutional law
creates a burden for lawyers. For instance, teaching opinions written
decades ago suggesting that lawyers might commit malpractice by failing
to pursue state constitutional theories may provoke criticism. See, e.g.,
State v. Lowry, 667 P.2d 996, 1013 (Or. 1983) (Jones, J., concurring
specially) (“Oregon . . . lawyers . . . should recognize that under the
majority’s philosophy and the most recent reflections by the United
States Supreme Court . . . they should not rely upon the substantial
changes in federal constitutional cases recently decided by the United
States Supreme Court. . . . Any defense lawyer who fails to raise an
Oregon Constitution violation and relies solely on parallel provisions
under the federal constitution, except to exert federal limitations, should
be guilty of legal malpractice.”), disapproved on other grounds by State v.
Owens, 729 P.2d 524, 531 (Or. 1986). Yet, over two decades ago, an
experienced Iowa appellate lawyer, writing in the pages of the Drake Law
Review, declared that “ignorance should be no excuse in the third
century of American law” for the failure of lawyers to develop state
28
constitutional arguments different from federal precedents, noting that
between 1971 and 1986 there were over three hundred cases where state
courts departed from federal precedents in the interpretation of state
constitutional law. See Bruce Kempkes, The Natural Rights Clause of the
Iowa Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593,
656–57 (1993). The number of independent state constitutional cases
has grown exponentially since then. In 2010, the Conference of Chief
Justices passed a resolution urging law schools to teach state
constitutional law, noting, among other things, that state constitutional
guarantees of rights “ ‘are often greater than federally guaranteed
individual rights and liberties’ ” and that “ ‘being a competent and
effective lawyer requires an understanding of both the Federal
Constitution and state constitutional law.’ ” Robert F. Williams, Why
State Constitutions Matter, 45 New Eng. L. Rev. 901, 912 (2011) (citation
omitted).
The work required to be a “competent and effective” lawyer as
envisioned by the Conference of Chief Justices is not overwhelming. As
noted by Jennifer Friesen in her important treatise on state
constitutional law, lawyers may find cases rejecting federal precedents by
simply checking relevant citations. See 2 Friesen § 11.01 n.5, at 11-4.
In addition to readily searchable caselaw, there is now a very large
volume of readily accessible secondary materials discussing just about
every aspect of state constitutional law. A diligent lawyer thus has ready
access to the materials necessary to develop state constitutional law
arguments.
8. “Criteria” as a solution in search of a problem. The independent
state constitutional cases also address the issue of whether there should
be some kind of “criteria” before a state court engages in independent
29
legal analysis. As Professor Williams has pointed out, “[t]he often
unstated premise that U.S. Supreme court interpretations of the federal
Bill of Rights are presumptively correct for interpreting analogous state
provisions is simply wrong.” Williams at 135. Williams notes that John
Paul Stevens referred to the “misplaced sense of duty” which occurs
when a state court believes the boundaries of its state constitution are
marked by the Supreme Court in its interpretation of the Federal
Constitution. See id. at 170 (citing Delaware v. Van Arsdall, 475 U.S.
673, 699, 106 S. Ct. 1431, 1445, 89 L. Ed. 2d 674, 696 (1986) (Stevens,
J., dissenting)). As noted by Utah Chief Justice Christine Durham:
Independent analysis must begin with the constitutional text
and rely on whatever assistance legitimate sources may
provide in the interpretive process. There is no presumption
that federal construction of similar language is correct.
State v. Tiedemann, 162 P.3d 1106, 1114 (Utah 2007); see State v.
Kennedy, 666 P.2d 1316, 1322 (Or. 1983) (noting “the non sequitur that
the United States Supreme Court’s decisions under [the federal Bill of
Rights] not only deserve respect but presumptively fix its correct meaning
also in state constitutions”).
While it has been observed that “[c]itation to a federal opinion . . .
too often serves as a substitute for the considered reasoning that should
accompany a particular interpretation of a state’s constitution,”
Lawrence Friendman & Charles H. Baron, Baker v. State and the Promise
of the New Judicial Federalism, 43 B.C. L. Rev. 125, 127 (2001), our
independent authority to construe the Iowa Constitution does not mean
that we generally refuse to follow the United States Supreme Court
decisions. For example, in State v. Breuer, we rejected the approach of
another state court that required the physical presence of a warrant at
the location of a judicially authorized search or seizure. 808 N.W.2d
30
195, 199–201 (Iowa 2012). We determined that the approach of the
United States Supreme Court provided the most persuasive reasoning.
See id. at 197–201. Certainly adoption of appropriate federal precedents
that “illuminate open textured provisions” of a state constitution is not a
compromise of the court’s obligation to independently construe the
provision. See State v. Lamme, 579 A.2d 484, 490 (Conn. 1990). We
should feel free to adopt the approach of persuasive federal precedent
but should “never feel compelled to parrot” federal interpretations.
Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992). What is required
under the Iowa constitution, in each and every case that comes before
us, is not mere identification of a potentially analogous federal precedent,
but exercise of our best, independent judgment of the proper parameters
of state constitutional commands.
In addition to arising from a substantively flawed premise, criteria
approaches further have the potential to complicate and distort the
nature of judicial decisions by encouraging elaborate discussion on the
nature of the arcane criteria itself rather than the broad values
underlying the constitutional provision. Cf. Williams at 162, 167–68. As
a result, one of the states that first developed a criteria approach,
Washington, has now emphasized that the criteria are only
“nonexclusive.” Sofie v. Fibreboard Corp., 771 P.2d 711, 725 (Wash.
1989) (citing State v. Wethered, 755 P.2d 797, 800 (Wash. 1988)).
9. Limitations of advocacy and preservation. Notwithstanding the
development of independent state constitutional law, in many cases
lawyers do not advocate an Iowa constitutional standard different from
the generally accepted federal standard. As a matter of prudence, we
have adopted the approach in these cases that we will utilize the general
standard urged by the parties, but reserve the right to apply the
31
standard in a fashion different than the federal caselaw. See Baldon,
829 N.W.2d at 822–23. As a majority of this court noted in State v.
Edouard, such an approach is sound practice. See State v. Edouard, ___
N.W.2d ___ (2014). There can often be considerable difference among
judges and courts in the application of open textured constitutional
principles such as “reasonableness,” “rational basis,” “reasonable
expectation of privacy,” “totality of circumstances,” and many others. 7
Where no party questions the general framework applicable in a case, we
may disagree with federal courts in the application of that principle. See
State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009). As noted by Judge
Judith Kaye of the New York Court of Appeals, when the court disagrees
with the application of precedents, “our considered judgment hardly
justifies attack for lack of principle.” People v. Scott, 593 N.E.2d 1328,
1347 (N.Y. 1992) (Kaye, J., concurring). The only way to avoid the
possibility of differences in judgment over the application of open
textured general principles to the facts at hand where there are a
number of plausible alternatives is to have a one-person court whose
declarations are binding in all cases. Further, we have emphasized that
we may apply open textual standards more stringently than the federal
caselaw under the Iowa Constitution. See Bruegger, 773 at 883; Racing
Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004). See
generally Fair Cadillac-Oldsmobile Isuzu P’ship v. Bailey, 640 A.2d 101,
104 (Conn. 1994) (“[I]t is clear that our adoption, for purposes of state
7 For
instance, many state courts, including Iowa, have on remand from a
reversal by the United States Supreme Court on federal constitutional issues, followed
their previous reasoning under the state constitution. See, e.g., Racing Ass’n of Cent.
Iowa v. Fitzgerald, 675 N.W.2d 1, 4–7 (Iowa 2004); Sitz v. Dep’t of State Police, 506
N.W.2d 209, 216–17 (Mich. 1993); State v. Opperman, 247 N.W.2d 673, 674–75 (S.D.
1976).
32
constitutional analysis, of an analytical framework used under the
federal constitution does not preclude us from concluding that a statute
that would be valid under the federal constitution is nevertheless invalid
under our state constitution.”); Edouard, ___ N.W.2d at ___ (Appel, J.,
concurring specially); Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984)
(although state and federal equal protection provisions incorporate the
same general framework, our construction and application of the Utah
equal protection provision is not controlled by federal courts); Robert F.
Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev.
1195, 1219 (1985) (noting methodology of state courts applying federal
constructs independently but reaching results that conflict with federal
courts).
In some cases, we have vindicated claims based on search and
seizure violations under the United States Constitution and not the Iowa
Constitution. See State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013);
State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013). In these cases, we
found it unnecessary to address whether there were any violations under
the Iowa Constitution. Kooima, 833 N.W.2d at 206; Tyler, 830 N.W.2d at
292. In Kooima, we expressly stated that “even where a party has not
advanced a different standard for interpreting a state constitutional
provision, we may apply the standard more stringently than federal
caselaw.” 833 N.W.2d at 206. A similar statement was presented in
Tyler. 830 N.W.2d at 291–92. We do not think the resolution of these
cases under federal law should be construed as qualifying or overruling
what Tyler characterized as what “we have consistently stated,” namely,
that we “ ‘jealously protect this court’s authority to follow an independent
approach’ ” to claims made under the Iowa Constitution and that we
reserve the right even in cases where parties do not advocate a different
33
standard to apply the standard differently than federal precedents. Id. at
291 (quoting Pals, 805 N.W.2d at 771). To the extent there are any
lingering notions to the contrary, we explicitly reject them today.
10. Reaffirmation and application of precedents to Iowa
constitutional issue presented in this case. Our recent cases of Cline,
Ochoa, Pals, Baldon, and the special concurrence in Edouard outline our
approach to independent state constitutional law under article I, section
8 of the Iowa Constitution as summarized above. Today, we again
reaffirm these principles. To the extent our cases can be read as having
implications contrary to the above approach, they are specifically
overruled.
Turning now to the question before us, the Iowa constitutional
precedent under article I, section 8 on the question of whether a warrant
is required before law enforcement may search a person’s home based on
the person’s status is Cullison. See 173 N.W.2d at 535. In Cullison, we
held that a parolee did not suffer a diminution of constitutional
protections from warrantless search and seizures simply because of his
status as a parolee. See id. at 538–39. Although Cullison involved a
parolee rather than a probationer, see id. at 534, the analytic structure
of Cullison applies with equal force to both. The fundamental question
before the court today is whether the holding and analysis in Cullison
under the Iowa Constitution continue to be good law or whether we
should abandon it in favor of the innovations resulting from the United
States Supreme Court’s reconstruction of search and seizure doctrine in
recent years.
C. Pre-Cullison Caselaw. Prior to our decision in Cullison, the
caselaw regarding whether a warrant was required before searching the
home of a probationer or parolee was inconclusive. Some cases from
34
other jurisdictions held that a probationer or parolee had lesser
constitutional rights than citizens generally. See U.S. ex rel. Randazzo v.
Follette, 282 F. Supp. 10, 13 (S.D.N.Y. 1968) (finding parole to be a
powerful factor in determining the validity of the search); People v.
Hernandez, 40 Cal. Rptr. 100, 104 (Dist. Ct. App. 1964) (determining the
reasonableness or probable cause requirement did not apply when parole
supervisors searched parolees). On the other hand, there was contrary
authority. See, e.g., Brown v. Kearney, 355 F.2d 199, 200 (5th Cir. 1966)
(finding a parolee is entitled to constitutional protection from illegal
search and seizure); People v. Overall, 151 N.W.2d 225, 226–27 (Mich.
Ct. App. 1967) (invalidating warrantless search of parolee). For example,
in United States v. Lewis, a federal district court held that a search of a
parolee’s apartment without a warrant was invalid, absent consent of the
parolee. 274 F. Supp. 184, 187 (S.D.N.Y. 1967).
At about the time of Cullison, however, there were two prominent
features of search and seizure law in both the federal and state courts.
First, the United States Supreme Court, and this court, expressed strong
preference for validly obtained warrants. The existing caselaw was
summarized in Coolidge v. New Hampshire, 403 U.S. 443, 454–55, 91
S. Ct. 2022, 2032, 29 L. Ed. 2d 564, 576 (1971), where the court noted:
[T]he most basic constitutional rule in this area is that
searches conducted outside the judicial process, without
prior approval of a judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well delineated exceptions.
The exceptions are jealously and narrowly drawn, and there
must be a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.
Id. (footnotes omitted) (internal quotations omitted).
Second, the cases emphasized the importance of the sanctity of the
home in search and seizure jurisprudence. For instance, in United
35
States v. United States District Court, the Supreme Court summarized the
state of the law by noting that “physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.” 407
U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972).
Similarly, we long ago emphasized that in connection with constitutional
liberties, there is “no higher or stronger guaranty than that of his home,
his papers, and [personal] effects.” State v. Sheridan, 121 Iowa 164, 167,
96 N.W 730, 731 (1903). We have declared that the asserted right of
officers to “thrust themselves into a home” is a matter of “grave concern.”
State v. Brant, 260 Iowa 758, 763, 150 N.W.2d 621, 625 (1967).
In Agnello v. United States, the two concepts of the warrant
requirement and the importance of the home merged. 269 U.S. 20, 33,
46 S. Ct. 4, 6–7, 70 L. Ed. 145, 149 (1925). The Agnello Court
emphasized that:
Belief, however well founded, that an article sought is
concealed in a dwelling house, furnishes no justification for
a search of that place without a warrant. And such searches
are held unlawful notwithstanding facts unquestionably
showing probable cause.
Id. at 33, 46 S. Ct. at 6, 70 L. Ed. at 149; accord Johnson v. United
States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948)
(emphasizing the role of a warrant in search and seizures involving the
home.)
In addition, many years ago, we stated that the protections in
search and seizure law were to be given “a broad and liberal
interpretation for the purpose of preserving . . . liberty.” State v. Height,
117 Iowa 650, 661, 91 N.W. 935, 938 (1902). A broad and liberal
interpretation to search and seizure was reflected in Sheridan, where this
court was one of the first courts in the nation to embrace the
36
exclusionary rule in connection with search and seizure violations. See
121 Iowa at 165–69, 96 N.W. at 731–32; see also State v. Cline, 617
N.W.2d 277, 285 (Iowa 2000) (“An example of this court’s attempts to
preserve the spirit of Iowa’s constitutional guarantee is reflected in the
fact that Iowa was one of the first states to embrace the exclusionary rule
as an integral part of its state constitution’s protection against
unreasonable searches and seizures, and, in fact, did so several years
before the United States Supreme Court’s decision in Weeks. [v. United
States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914)]. The genesis
of Iowa’s exclusionary rule was a civil case, Reifsnyder v. Lee, 44 Iowa
101 (1876).”), abrogated on other grounds by State v. Turner, 630 N.W.2d
601, 606 n.2 (2001).
D. Overview of State v. Cullison. We have not specifically
confronted the question of whether a probationer may be subjected to a
warrantless home search, but we have considered whether a parolee may
be subject to a warrantless search. In Cullison, a parolee was subject to
a warrantless search of his living quarters by a parole supervisor. See
173 N.W.2d at 534–35. On appeal, the petitioner argued the search
violated article I, section 8 of the Iowa Constitution. See Defendant’s
brief and argument at 20, Cullison, 173 N.W.2d 533 (Iowa 1970) (No.
53491) [hereinafter Defendant’s Brief]. We held that the warrantless
search of the parolee’s residence was invalid. Cullison, 173 N.W.2d at
540–41.
In doing so, we first canvassed the then-existing federal and state
caselaw involving rulings under the Fourth Amendment. Id. at 535–36.
We noted that the caselaw generally divided into two camps: those courts
that either “[s]trip” or “[d]ilute” a parolee of Fourth Amendment rights
37
and those that afford full validity and recognition of these rights to
parolees. Id. at 536.
In Cullison, we strongly disapproved of the strip and dilute cases.
See id. We stated that the strip and dilute cases were based upon “what
may best be described as a socio-juristic rationalization, i.e., protection
of the public and constructive custody” and were not “constitutionally
sound, reasonable, fair or necessary.” Id. We stated that the “dilution
theory begins and ends nowhere, being at best illusory and evasive.” Id.
We quoted with approval a statement in Hernandez, where the court
declared that the notion that parolees lose their constitutional rights by
accepting parole “makes constitutional rights dependent upon a kind of
‘contract’ in which one side has all the bargaining power” and that “[a]
better doctrine is that the state may not attach unconstitutional
conditions to the grant of state privileges.” Id. at 536–37 (quoting
Hernandez, 40 Cal. Rptr. at 103).
We then turned to the Iowa Constitution. Id. at 537. We noted
that article II, section 5 of the Iowa Constitution provides that no
“ ‘person convicted of any infamous crime, shall be entitled to the
privileges of an elector.’ ” Id. (quoting Iowa Const. art. II, § 5). We
recognized that the plain language of article II, section 5 meant that,
upon conviction of an infamous offense, the defendant lost his right to
vote or hold public office. Id. We then declared: “And certainly, with the
exception of lawful conditions governing conduct while on parole or
probation, no more onerous burden could be cast upon him by any
subsequent conditional release from a penal institution.” Id. at 537–38
(emphasis added). We further noted that “the fact that a criminal
accused is also a parolee should not, as to a new and separate crime,
38
destroy or diminish constitutional safeguards afforded all people.” Id. at
538 (emphasis added).
There can be no question that Cullison involves a holding under
the Iowa Constitution. The briefing before the Cullison court reveals that
the petitioner emphasized article I, section 8 of the Iowa Constitution.
According to the appellant’s brief in Cullison, the “Law applicable to this
area is found in Iowa Constitution, Art. I, Sec. 8.” Defendant’s Brief at
20. The appellant further argued that “[u]nlike the U.S. Constitution, the
Iowa Constitution specifically spells out the result or penalty of felony
conviction as far as diminution of constitutional rights are concerned, in
. . . Article II, Sec. 5.” Id. at 21. Although it is true that the Cullison
opinion does not expressly refer to article I, section 8, the Cullison court
adopted the appellant’s analysis that article II, section 5 of the Iowa
Constitution provides the only sanctions for persons convicted of a crime.
173 N.W.2d at 537–38. A provision of the state constitution has no
bearing on the interpretation of the scope of federal constitutional rights.
As a result, we stated in Baldon, “[w]ithout expressly saying so, we
decided Cullison based on the Iowa Constitution.” Baldon, 829 N.W.2d at
796 n.2 (majority opinion).
Though brief, the language in Cullison is exceptionally strong and
unequivocal. It represents a clear precedent drawing a bright line
regarding searches of the home. “[S]ocio-jurisidic” rationales to evade
the warrant requirement were unacceptable; the “dilution” theory was
“illusory.” See Cullison, 173 N.W.2d at 536. The warrant requirement
applied with full force to parolees, and, at least in dicta, to probationers
as well. See id. at 537–39.
One dissent in Cullison focused on the fact that the search was
conducted by a parole officer, and not a law enforcement officer. See id.
39
at 541 (Larson, J., dissenting) (framing the initial question as whether
the parole agent or assisting officer can seize stolen property and
considering the purposes of the parole system). The dissent believed that
a search by a parole officer qualified as one of the exceptions to the
warrant requirement. Id. at 543–44 (concluding a parolee has a special
status under search and seizure law). The second dissent further
emphasized that “[a]n unlawful warrantless search by peace officers does
not become legal because they are accompanied by a parole officer.” Id.
at 545 (Stuart, J., dissenting). In short, even under the dissents in
Cullison, the search in this case by a police officer, and not by a
probation officer, would have been invalid.8
The holding in Cullison, giving maximum constitutional protection
to the home, was consistent with existing federal and state caselaw. See,
e.g., Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29
L. Ed. 746, 751 (1886) (noting the purpose of the Fourth Amendment is
to protect against invasions of “the sanctity of a man’s home and the
privacies of life” from “government and its employes”), rejected on other
grounds by Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87
S. Ct. 164, 218 L. Ed. 2d 782 (1967); Weeks, 232 U.S. at 390–92, 34
S. Ct. at 343–44, 58 L. Ed. at 654–55 (“the 4th Amendment . . . put the
courts of the United States and Federal officials, in the exercise of their
power and authority, under limitations and restraints [and] . . . forever
secure[d] the people, their persons, houses, papers, and effects, against
8This
case, of course, involves a probationer and not a parolee. Even under the
United States Supreme Court’s Fourth Amendment cases, however, a probationer has
more protection from searches and seizures than does a parolee. See Samson v.
California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198, 165 L. Ed. 2d 250, 258 (2006)
(recognizing parole is more akin to imprisonment thus parolees have fewer expectations
of privacy). Cullison thus cannot be distinguished on the basis that it involved a parolee
who, if anything, had lesser search and seizure rights than a probationer.
40
all unreasonable searches and seizures under the guise of law”); Agnello,
269 U.S. at 32–33, 46 S. Ct. at 6, 70 L. Ed. at 147–48 (same). In these
cases, the United States Supreme Court repeatedly emphasized the
historic importance of protecting the home as at the core of Fourth
Amendment principles. Indeed, many state and federal courts have
favorably cited William Pitt’s famous speech in the House of Commons:
“The poorest man may in his cottage bid defiance to all the
forces of the Crown. It may be frail; its roof may shake; the
wind may blow through it; the storm may enter; the rain
may enter; but the King of England cannot enter—all his
force dares not cross the threshold of the ruined tenement[.]”
See, e.g., Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190,
1194–95, 2 L. Ed. 2d 1332, 1337 (1958); Jonathan L. Jafetz, “A Man’s
Home is His Castle?”: Reflections on the Home, the Family, and Privacy
During the late Nineteenth and Early Twentieth Centuries, 8 Wm. & Mary
J. Women & L. 175, 175 n.2 (2002).
Our caselaw contains similar language. As we emphasized in
McClurg v. Brenton:
The mere fact that a man is an officer, whether of high or low
degree, gives him no more right than is possessed by the
ordinary private citizen to break in upon the privacy of a
home and subject its occupants to the indignity of a search
for the evidences of crime, without a legal warrant procured
for that purpose. No amount of incriminating evidence,
whatever its source, will supply the place of such warrant.
At the closed door of the home, be it palace or hovel, even
bloodhounds must wait till the law, by authoritative process,
bids it open.
123 Iowa 368, 371–72, 98 N.W. 881, 882 (1904). In modern society,
probationers and parolees are more likely to live in impoverished
neighborhoods. See David J. Harding et al., Home is Hard to Find:
Neighborhoods, Institutions, and the Residential Trajectories of Returning
Prisoners, 647 Annals Am. Acad. Pol. & Soc. Sci. 214, 216–17, 222
41
(2013) (finding sixty-six percent of African Americans who lived in high-
poverty areas prior to prison moved back to high-poverty areas after
prison, and that generally “poor urban communities bear a
disproportionate share of the burden” of reintegrating former prisoners).
Under the language of McClurg and the holding in Cullison, the poor
cottage or ruined tenement of a parolee (and by implication a
probationer) may be unkempt, with lousy heat, running toilets, screens
with holes, noisy electric fans for summer relief, and low wattage
lighting, but such an abode is still protected by the awesome majesty of
the Iowa Constitution from unwarranted searches by government
authorities.
Cullison stands for the proposition that the protective arm of article
I, section 8 “extends to all alike, worthy and unworthy, without
distinction.” State v. Gansz, 297 So. 2d 614, 616 (Fla. Dist. Ct. App.
1974). As noted by Justice Murphy many years ago,
Rights intended to protect all must be extended to all, lest
they so fall into desuetude in the course of denying them to
the worst of men as to afford no aid to the best of men in
time of need.
Goldman v. United States, 316 U.S. 129, 142, 62 S. Ct. 993, 999, 86
L. Ed. 1322, 1331–32 (1942) (Murphy, J., dissenting), overruled in part
by Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed.
2d 576, 583 (1967).
E. Post-Cullison Caselaw. After Cullison, a number of other state
courts and federal courts considered this question under the Federal
Constitution or state constitutions. Some agreed with our approach in
Cullison. For instance, in United States v. Rea, the Court of Appeals for
the Second Circuit came to the conclusion that a probation officer is
required to obtain a warrant prior to conducting a search of the
42
probationer’s home unless the search fell within one of the judicially
recognized exceptions to the warrant requirement. 678 F.2d 382, 386–
88 (2d Cir. 1982). The Rea court emphasized that there had been “no
showing that upholding the warrant requirements for searches of
probationers’ homes will seriously impede the accomplishment of the
dual law enforcement and rehabilitative goals of probation.” Id. at 387.
Similarly, in United States v. Workman, the Court of Appeals for the
Fourth Circuit came to the same conclusion, noting that the approach
was “consistent with the Supreme Court’s admonition that exceptions to
the warrant requirement ‘are few in number and carefully delineated
. . . .’ ” 585 F.2d 1205, 1207 (4th Cir. 1978) (quoting U.S. Dist. Ct., 407
U.S. at 318, 92 S. Ct. at 2137, 32 L. Ed. 2d at 767), abrogated by Pa. Bd.
of Prob. & Parole v. Scott, 524 U.S. 357, 118 S. Ct. 2014, 141 L. Ed. 2d
344 (1998), as recognized in United States v. Armstrong, 187 F.3d 392,
394–95 (4th Cir. 1999). Other courts, such as the Court of Appeals for
the Ninth Circuit, came to different conclusion. See, e.g., Latta v.
Fitzharris, 521 F.2d 246, 252 (9th Cir. 1975). Yet, transient political
winds blew that emphasized the need for a war on crime and discounted
the founder’s principle search and seizure concern: fear of overreaching
government.
For many years, the United States Supreme Court in a number of
cases has expressed a strong reliance on the Warrant Clause in the
Fourth Amendment. What has been called the “warrant preference
approach” was closely associated with Justice Felix Frankfurter and
Justice Potter Stewart. See generally William W. Greenhalgh & Mark J.
Yost, In Defense of the “Per Se” Rule: Justice Stewart’s Struggle to
Preserve the Fourth Amendment’s Warrant Clause, 31 Am. Crim. L. Rev.
1013 (1994). Under the warrant preference approach, a warrant was
43
generally required, particularly for a home search, except under narrowly
defined circumstances, such as searches incident to arrest, or where
exigent circumstances make it impossible to obtain a warrant. See id. at
1016–17 (“[A] search is per se unreasonable unless it falls within one of
the limited exceptions to the warrant requirement.”). In recent decades,
however, the United States Supreme Court has embarked on a series of
innovations and reengineerings of established Fourth Amendment law
that has tended to minimize the role of warrants and emphasize the role
of the Reasonableness Clause. See id. at 1084 (“This [ideological] shift
has resulted at times in an outright hostility to the ‘per se’ rule in favor of
the more flexible standard of ‘reasonableness.’ ”). The newly fashioned
Fourth Amendment doctrine provides a framework for the United States
Supreme Court to avoid the warrant requirement whenever a majority of
the Court determines that it is “reasonable” to do so. See id. (“The
Court’s enthusiasm to embrace the flexible ‘reasonableness’ approach is
most noticeable in the numerical score: of the fifty-five Fourth
Amendment decisions since 1982, the Court has found only twelve
searches that violated the Fourth Amendment . . . Even more telling, the
Court has relied upon the “per se” rule as the framework for resolving
only nineteen of those fifty-five Fourth Amendment cases.”). As a result,
the warrant requirement under existing United States Supreme Court
precedent offers less protection for citizens against arbitrary government
intrusions than it did fifty years ago. See id. at 1091 (recognizing the
balancing approach has undermined the per se warrant requirement).
The reengineering of Fourth Amendment law is illustrated by the
highly divided opinion in Griffin. In Griffin, a five-member majority of the
United States Supreme Court concluded that a warrantless search of a
probationer’s home by probation officers pursuant to a Wisconsin
44
regulation was “reasonable” under the Fourth Amendment. Griffin, 483
at 870–71, 880, 107 S. Ct. at 3167, 3172, 97 L. Ed. 2d at 715–16, 721–
22. The Griffin majority avoided the Warrant Clause by application of a
“special needs” doctrine that justified departures from the usual warrant
and probable cause requirements. See id. at 873–74, 107 S. Ct. at 3168,
97 L. Ed. 2d at 717. The Griffin majority based its conclusions, at least
in part, on the factual premise that requiring a probation officer to obtain
a warrant would be “impracticable.” See id. at 876, 107 S. Ct. at 3169–
70, 97 L. Ed. 2d at 719.
In its analysis, the Griffin majority emphasized the difference
between a probation officer and general law enforcement conducting the
search. See id. at 879–80, 107 S. Ct. at 3171–72, 97 L. Ed. 2d at 721–
22. A search based upon reasonable suspicion instead of ordinary
probable cause was permissible, according to the Griffin majority,
because the risk of overreaching by a probation officer is less than that
when the search is conducted by a police officer whose only mission is to
ferret out crime. See id. at 876–79, 107 S. Ct. at 3170–71, 97 L. Ed. 2d
at 719–20.
The Griffin majority thus moved the search and seizure goal posts
twice: first by announcing that, in some instances, a warrant was no
longer required for a home search, and second, that a warrantless search
could be supported by less than traditional probable cause. See id. at
873–80, 107 S. Ct. at 3168–72, 97 L. Ed. 2d at 717–22.
Seemingly recognizing the potential instability of its
“reasonableness” approach, the Griffin majority drew a firm line between
a search by a probation officer and a search by a general law
enforcement officer. See id. at 879–80, 107 S. Ct. at 3171–72, 97
L. Ed. 2d at 721–22. As is apparent, the reasoning of the majority in
45
Griffin is consistent with the minority opinion in Cullison, which
emphasized that the search was conducted by a probation officer.
Writing for three members of the Court, Justice Blackmun wrote:
I do not think . . . that special law enforcement needs justify
a modification of the protection afforded a probationer’s
privacy by the warrant requirement. The search in this case
was conducted in petitioner's home, the place that
traditionally has been regarded as the center of a person’s
private life, the bastion in which one has a legitimate
expectation of privacy protected by the Fourth Amendment.
Id. at 883, 107 S. Ct. at 3173, 97 L. Ed. 2d at 724 (Blackmun, J.,
dissenting).
Justice Stevens, joined by Justice Marshall, was even more
pointed:
Mere speculation by a police officer that a probationer
“may have had” contraband in his possession is not a
constitutionally sufficient basis for a warrantless,
nonconsensual search of a private home. I simply do not
understand how five Members of this Court can reach a
contrary conclusion.
Id. at 890, 107 S. Ct. at 3177, 97 L. Ed. 2d at 728. (Stevens, J.,
dissenting).
The United States Supreme Court revisited the general area of
search and seizure rights of probationers in Knights. In Knights, the
search was conducted by a police officer, not by probation officers as in
Griffin. 534 U.S. at 115, 122 S. Ct. at 589, 151 L. Ed. 2d at 502–03. The
question was whether the line drawn in Griffin would hold. Id. at 117–
18, 122 S. Ct. at 590–91, 151 L. Ed. 2d at 503–05. It did not. Tossing
aside the limiting language in the 5–4 Griffin decision, the Knights Court
held that a probationer who signed a probation agreement containing a
search condition which stated that he would be subject to a search,
which included his residence, at any time and any place, had a
46
“significantly diminished . . . expectation of privacy.” Id. at 119–20, 122
S. Ct. at 592, 151 L. Ed. 2d at 505. Instead of a limited “special needs”
analysis that focused on the value of a warrantless search in promoting
the rehabilitation of persons subject to probation, the Supreme Court
permitted a search by law enforcement based upon the “totality of the
circumstances.” See id. at 118, 122 S. Ct. at 591, 151 L. Ed. 2d at 505.
As a result, a warrantless search conducted by law enforcement officers
as well as probation officers, at least where police had reasonable
suspicion that evidence of a crime would be uncovered, was now
permissible under the Fourth Amendment.
While Griffin announced the limiting principle that warrantless
home searches were permissible if conducted by a probation officer
pursuant to ordinary supervisory activities, 483 U.S. at 879, 107 S. Ct.
at 3171, 97 L. Ed. 2d at 721, the search and seizure goal posts for
warrantless home searches were moved once again in Knights, 534 U.S.
at 115, 119–20, 122 S. Ct. at 589, 592, 151 L. Ed. 2d at 502–03, 505.
The old limiting principle of Griffin based upon “special needs” was
simply eliminated. See Knights, 534 U.S. at 122, 122 S. Ct. at 593, 151
L. Ed. 2d at 506–07 (finding a warrantless search “supported by
reasonable suspicion and authorized by a condition of probation, was
reasonable within the meaning of the Fourth Amendment”). The ruling
in Knights is thus not only inconsistent with the Cullison majority on
multiple grounds (no search warrant, no probable cause), but it is also
inconsistent with the Cullison minority, which emphasized the fact that
the search was conducted by a probation officer.
Finally, the Supreme Court considered Samson v. California, a case
addressing the warrantless search of a parolee. 547 U.S. 843, 846, 126
S. Ct. 2193, 2196, 165 L. Ed. 2d 250, 255–56 (2006). In this case, a
47
parolee was stopped while walking down a street and subjected to a
search, revealing a plastic bag filled with methamphetamine. Id. at 846–
47, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255–56. In Samson, the
Supreme Court again rejected its prior limiting principle of “reasonable
suspicion.” See id. at 857, 126 S. Ct. at 2202, 165 L. Ed. 2d at 262
(permitting a suspicionless search of a parolee under the Fourth
Amendment). In order to reach the desired pragmatic result, the Samson
Court declared that the Fourth Amendment involves a continuum of
rights. See id. at 850, 126 S. Ct. at 2198, 165 L. Ed. 2d at 258.
According to the Samson majority, the protections afforded by the Fourth
Amendment depend upon a continuum, where parolees have some
expectations of privacy; however, these expectations are greatly
diminished because parole is the equivalent of imprisonment, while a
probationer has a greater interest because probation is ordinarily in lieu
of and not in addition to imprisonment. See id. For a parolee who was
subject to a search condition like Samson, “reasonable suspicion” was no
longer required. See id. at 857, 126 S. Ct. at 2202, 165 L. Ed. 2d at 262
(finding a police officer could conduct a suspicionless search of a parolee
without violating the Fourth Amendment).
Justice Stevens dissented, writing that the majority’s decision
embraced “a regime of suspicionless searches, conducted pursuant to a
blanket grant of discretion untethered by any procedural safeguards,
[and] by law enforcement personnel who have no special interest in the
welfare of the parolee or probationer.” Id. at 857, 126 S. Ct. at 2202, 165
L. Ed. 2d at 262–63 (Stevens, J., dissenting). According to Justice
Stevens, the new regime announced by the majority was “an
unprecedented curtailment of liberty.” Id. Clearly, by departing from
48
even a “reasonable suspicion” requirement, the Supreme Court moved
the search and seizure goal posts for a fourth time.
Two propositions are clear from Griffin, Knights, and Samson.
First, the United States Supreme Court, beginning in 1981, has
developed new Fourth Amendment doctrine that dramatically and
substantially undercuts the traditional warrant requirement, probable
cause, and particularity requirements of search and seizure law.
Second, the new doctrine announced in Griffin, Knights, and Samson is
unquestionably, flatly contrary to the approach of this court in Cullison
twenty years earlier. In Griffin, Knights, and Samson, the Supreme Court
engaged in exactly the kind of “socio-juristic” analysis and “dilution” that
the Cullison majority expressly and firmly rejected. Further, even the
dissent in Cullison emphasized the fact that a parole officer conducted
the search. See 173 N.W.2d at 543–44 (Larson, J., dissenting). The
contrast between Cullison and the Griffin-Knights-Samson line of cases is
sharp and unmistakable.
Notwithstanding the Supreme Court’s approach in Griffin, Knights,
and Samson, we have not revisited the holding in Cullison. In Ochoa, we
rejected the eviscerating innovation of the Supreme Court in Samson.
See Ochoa, 792 N.W.2d at 291. In doing so, we emphasized, among
other things, the historic basis of search and seizure law, the sanctity of
the home, and the important role of warrants under article I, section 8 of
the Iowa Constitution. Id. at 287–91. In Ochoa, we rejected the latest
movement of the search and seizure goalposts by the United States
Supreme Court.
In Ochoa, the State, with honesty and integrity, declined to claim
that the search was supported by reasonable suspicion. See id. at 262–
64. As a result, it was not necessary for the Ochoa court to consider
49
whether Griffin or Knights was good law or to reconsider Cullison. See id.
at 287 (noting the court could simply affirm Cullison, but it was not
necessary to address the warrant and probable cause requirements when
the search was invalid under a reasonableness analysis). It was enough
for one day’s work, to simply reject the doctrine of Samson under article
I, section 8 of the Iowa Constitution.
In the case before us today, however, there is no question that law
enforcement authorities had reasonable suspicion to search Short’s
home. The State’s sole claim on appeal is that reasonable suspicion is
enough, case closed. Thus, the issue on appeal is squarely presented: is
Cullison good law? Or, do we accept instruction from the United States
Supreme Court and engage in an innovative reconfiguration of traditional
search and seizure law under the Iowa Constitution?
F. Analysis: Should Cullison Be Overruled? The question
before us now is whether we should overrule Cullison. Of course, stare
decisis is a factor to consider. At the same time, we recognize that stare
decisis is not always determinative. See State v. Bruce, 795 N.W.2d 1, 3
(Iowa 2011). Otherwise, the law would be like a fly imprisoned in
volcanic rock.
We begin with a textual look at article I, section 8 of the Iowa
Constitution, which provides:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable seizures
and searches shall not be violated; and no warrant shall
issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched,
and the persons and things to be seized.
Iowa Const. art. I, § 8. The text is, of course, nearly identical to the
Fourth Amendment to the United States Constitution, which was, in
turn, largely modeled after the Massachusetts Constitution of 1780. See
50
Ochoa, 792 N.W.2d at 268 n.7. In-depth modern scholarship has
demonstrated that the contemporaneous meaning of the term
“unreasonable” in search and seizure law was not the flexible, pragmatic
interpretation that we often assign to the term today, but instead a
synonym for “unlawful.” See Thomas Y. Davies, Correcting Search-And-
Seizure History: Now-Forgotten Common-Law Warrantless Arrest
Standards and the Original Understanding of “Due Process of Law,” 77
Miss. L.J. 1, 118 (2007) [hereinafter Davies] (recognizing the term
“unreasonable” meant to say a warrant was “so illegal that even
legislation could not authorize [it]”). Sir Edward Coke opposed general
warrants as “ ‘against reason,’ ” again, a reference to their unlawful
character. Ochoa, 792 N.W.2d at 269 (quoting Andrew E. Taslitz,
Reconstructing the Fourth Amendment: A History of Search & Seizure,
1789–1868, at 37 (2006)). Further, contemporary legal treatises and
dictionaries indicated that categories of searches, arrests, and seizures
were “unreasonable” and therefore abolished by the Fourth Amendment.
See William J. Cuddihy, The Fourth Amendment: Origins and Original
Meaning, 602–1791, at 734–35 (2009) [hereinafter Cuddihy]; see also
Davies, 77 Miss. L. Rev. at 13 (characterizing the approach of the United
States Supreme Court as to “reasonableness” as a modern invention that
engages in relativistic balancing of individual rights and reflects relatively
recent, ideologically driven judicial choices, not a rendition of original
understanding, and urging state courts to engage in authentic search
and seizure history).
But textualists will also note that unlike accepted versions of the
Fourth Amendment, article I, section 8 utilizes a semicolon between the
reasonableness clause and the warrant clause. As pointed out in Ochoa,
a semicolon ordinarily is used to show that the language that follows the
51
semicolon illustrates the basic principle, namely, that in order to avoid
being declared “unreasonable” or unlawful, under article I, section 8, a
warrant is ordinarily required. See 792 N.W.2d at 268–69.
Indeed, the notion that in order for a search to be reasonable, it
must be pursuant to a warrant has considerable historical support.
James Otis, in his brief in Paxton’s Case, asserted that only specific
warrants were reasonable and that “ ‘the freedom of one’s house’ was
among ‘the most essential branches of English liberty.’ ” Cuddihy at
377–78 (citation omitted). Similarly, shortly before Iowa obtained
statehood, a state court held that in order for a search to be reasonable,
it had to be executed pursuant to a warrant. See Banks v. Farwell, 38
Mass. (21 Pick.) 156, 159 (1838). While these historical lines of inquiry
do not necessarily provide the rule of decision in concrete cases involving
unforeseen circumstances, the historical record does offer insight into
the meaning of constitutional values that must be applied to modern
circumstances.
There are also structural reasons for defending the warrant
requirement. As we indicated in Ochoa, an interpretation that focuses on
the reasonableness clause as the touchstone of search and seizure law
sets up the intellectual machinery to engulf the warrant clause and make
its mandatory provision ephemeral. See 792 N.W.2d at 269. The search
and seizure protections of article I, section 8 would be subject to
reasonability determinations by shifting four-member majorities of this
court, based upon pragmatic considerations. Members of this court—
indeed any court—can come up with ingenious explanations of how just
about any search is reasonable. Cf. Skinner v. Ry. Labor Execs.’ Ass’n,
489 U.S. 602, 637, 109 S. Ct. 1402, 1424, 103 L. Ed. 2d 639, 672–73
(1989) (Marshall, J., dissenting) (noting that absent warrant and
52
probable cause standards, concept of reasonableness is “virtually devoid
of meaning, subject to whatever content shifting judicial majorities,
concerned about the problems of the day, choose to give to that supple
term”). The cautionary words of Anthony Amsterdam in his classic study
on the Fourth Amendment that reliance on reasonability threatens to
convert “the [F]ourth [A]mendment into one immense Rorschach blot”
has even greater urgency today than it did forty years ago. See Anthony
Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev.
349, 393 (1974) [hereinafter Amsterdam].
Indeed, rejection of this kind of slippery reasoning was at the very
heart of Cullison, which declared that socio-jurisdic requirements to
evade the constitutional command of the need for a search warrant were
unacceptable. 173 N.W.2d at 536; see also Griffin, 483 U.S. at 890, 107
S. Ct. at 3177, 97 L. Ed. 2d at 728 (Stevens, J., dissenting) (expressing
surprise that five members of the Supreme Court would overrule the
probable cause and warrant requirements in the context of a search of a
probationer by probation officers). As a result, we have little interest in
allowing the reasonableness clause to be a generalized trump card to
override the warrant clause in the context of home searches and reject
the cases suggesting otherwise.
It is of course true that in this case, law enforcement officers had
reasonable suspicion, at least as established at the hearing on the
motion to suppress. Short does not suggest otherwise. A requirement of
individualized suspicion, as indicated in Ochoa, can be an important
factor in preventing arbitrary searches and seizures by law enforcement,
and our refusal to accept the Samson approach under article I, section 8
of the Iowa Constitution was an important development in our law.
53
It is tempting, perhaps, to say that in this case, where the record
shows that law enforcement had good reason to conduct the search, that
the constitutional requirements have been satisfied. But article I, section
8 does not speak solely in terms of probable cause. Irrevocably welded
into article I, section 8 are requirements that a warrant be issued by a
neutral magistrate that limits the scope of the search both with respect
to places to be searched and items to be seized. The warrant and
particularity requirements of article I, section 8 are not weak siblings of
the probable cause requirement. By requiring approval of a neutral
magistrate and a description with particularity, important constitutional
values are promoted. By involving a neutral magistrate, the warrant
requirement ensures that probable cause is evaluated not by overzealous
law enforcement officers. The traditional view has been that “ ‘the
procedure of antecedent justification . . . is central to the Fourth
Amendment.’ ” See Katz, 389 U.S. at 359, 88 S. Ct. at 515, 19 L. Ed. 2d
at 586 (footnote omitted). As noted by Justice Jackson in Johnson:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable [people] draw from evidence. Its protection
consists in requiring that those inferences be drawn by a
neutral and detached magistrate instead of being judged by
the officer engaged in the often competitive enterprise of
ferreting out crime. Any assumption that evidence sufficient
to support a magistrate’s disinterested determination to
issue a search warrant will justify the officers in making a
search without a warrant would reduce the Amendment to a
nullity and leave the people’s homes secure only in the
discretion of police officers.
333 U.S. at 13–14, 68 S. Ct. at 369, 92 L. Ed. at 440 (footnote omitted).
In addition, the particularity requirement limits the scope of the
search, which is often as important to the protection of constitutional
54
rights as the authorization of the search itself. As noted in Arkansas v.
Sanders:
In the ordinary case . . . a search of private property must be
both reasonable and pursuant to a properly issued search
warrant. The mere reasonableness of a search, assessed in
the light of the surrounding circumstances, is not a
substitute for the judicial warrant [requirement] . . . .
442 U.S. 753, 758, 99 S. Ct. 2586, 2590, 61 L. Ed. 2d 235, 241 (1979)
overruled on other grounds by Acevedo, 500 U.S. at 579, 111 S. Ct. at
1991, 114 L. Ed. 2d at 633–34. In addition, the process of obtaining a
warrant prevents the possibility of post-hoc rationales. With a written
application and a warrant issued by a magistrate, we can look to the
documented record in evaluating the lawfulness of a search, thereby
steaming out many credibility issues associated with inquiries about who
said what to whom and when.
Our recognition of the importance of all of the requirements of the
warrant clause is demonstrated in Cline. See 617 N.W.2d at 281–82. A
majority of state courts that have considered the question under search
and seizure clauses of their state constitutions, refused to recognize the
new good faith exception to the exclusionary rule in the search and
seizure context created by the United States Supreme Court in United
States v. Leon, 468 U.S. 897, 922–25, 104 S. Ct. 3405, 3420–22, 82 L.
Ed. 677, 698–700 (1984). See, e.g., State v. Marsala, 579 A.2d 58, 65
(Conn. 1990); State v. Guzman, 842 P.2d 660, 667–68 (Idaho 1992); State
v. Novembrino, 519 A.2d 820, 856–57 (N.J. 1987); State v. Gutierrez, 863
P.2d 1052, 1068 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451, 457–58
(N.Y. 1985); Edmunds, 586 A.2d at 895 (Pa. 1991); State v. Oakes, 598
A.2d 119, 126–27 (Vt. 1991). Our court refused as well. Cline, 617
N.W.2d at 292–93. We refused to allow evidence obtained as a result of
55
purportedly minor defects in searches and seizures. See id. The
constitutional protections of article I, section 8 were simply too important
for a “close enough” mentality. See id. at 290. As noted by Justice
Frankfurter many years ago, “[t]he history of liberty has largely been the
history of observance of procedural safeguards.” McNabb v. United
States, 318 U.S. 332, 347, 63 S. Ct. 608, 616, 87 L. Ed. 819, 827–28
(1943).
Even if we were inclined to fuzzy up the warrant requirement, a
home invasion by law enforcement officers is the last place we would
begin the process. The canard that a person’s home is their castle has
always been subject to some limitations, but the basic principle remains
a sound one. We are not talking about a routine encounter at airport
security where the announced and understood purpose of the
examination is safety of passengers unrelated to the goals of general law
enforcement, or an investigative stop on the street where a quick pat
down is conducted to ensure the safety of police officers, or an exigent
circumstance where the acquisition of a warrant was simply not possible.
Here, police officers are penetrating a home, the place of final refuge, the
focal point of intimate relationships, and what is constitutionally thought
of as a place of safety, security, and repose. Of course, no one says such
an invasion can never occur, but only that a warrant, supported by
probable cause, describing the place to be searched and the things to be
obtained with particularity, is required.
Sometimes, eviscerations of constitutional protections are based
upon claims that a probationer has a lesser expectation of privacy. Such
reasoning is generally based upon a misreading of Justice Harlan’s
concurring opinion in Katz. See 389 U.S. at 360–62, 88 S. Ct. at 516–17,
19 L. Ed. 2d at 587–88 (Harlan, J., concurring). However, the
56
expectation of privacy test in Justice Harlan’s concurrence in Katz was
designed to expand, and not contract, constitutional protections. Id. at
361, 88 S. Ct. at 516, 19 L. Ed. 2d at 587–88. Even Justice Harlan as
the author of the concurring opinion objected to its later applications.
See United States v. White, 401 U.S. 745, 786–87, 91 S. Ct. 1122, 1143,
28 L. Ed. 2d 453, 478 (1971) (Harlan, J., dissenting) (stating intrusions
significantly jeopardizing Fourth Amendment liberties should require a
warrant). And it simply cannot be said that the government, by simply
announcing that warrantless searches may occur, can eviscerate the
right to be left alone inherent in article I, section 8. Cf. State v. Campbell,
759 P.2d 1040, 1044 (Or. 1988) (noting that the phrase “expectation of
privacy” expresses a conclusion rather than a starting point and that
Oregon search and seizure law protects not the privacy one reasonably
expects but the privacy to which one has a right); State v. Tanner, 745
P.2d 757, 762 n.7 (Or. 1987) (citing Amsterdam, 58 Minn. L. Rev. at
384). If a government announcement that a citizen is no longer free from
unwarranted home search overrode the requirements of article I,
section 8, citizen protections would be dramatically undermined.
Further, the expectation of privacy analysis was not designed to supplant
other constitutional values protected by search and seizure law,
including the right to be secure in one’s home from trespass by law
enforcement. See Ochoa, 792 N.W.2d at 277 (recognizing a continued
notion of property and security in Fourth Amendment protections).
While we recognize that the probation agreement provided Short with
notice that the State asserted the right to execute warrantless searches,
we do not think notice eviscerates the warrant requirement for home
searches. Cf. Samson, 547 U.S. at 863, 126 S. Ct. at 2206, 165 L. Ed.
2d at 266 (Stevens, J., concurring) (rejecting reliance on a condition or
57
notice in parole agreement because otherwise, the government could
“ ‘suddenly . . . announce on nationwide television that all homes
henceforth would be subject to warrantless entry’ ”); Campbell, 759 P.2d
at 1044 (noting that the majority opinion in Katz does not use the phrase
“reasonable expectation of privacy” and under the Oregon Constitution
emphasizing privacy to which one has a right). Cullison rejected
reasoning designed to strip or dilute constitutional protections for
probationers home searches. See 173 N.W.2d at 536. So should we.
We further note that the requirements imposed by article I,
section 8 and enforced by us, namely, that a warrant is required for an
unconsented search of the home, even of a parolee or probationer, is not
terribly onerous. Indeed, the balancing of interests between the
individual and law enforcement has already occurred in article I, section
8 in the probable cause requirement. As we have noted in the past:
The rule of probable cause is a practical, nontechnical
conception affording the best compromise that has been
found for accommodating . . . opposing interests. Requiring
more would unduly hamper law enforcement. To allow less
would be to leave law-abiding citizens at the mercy of the
officer’s whim or caprice.
State v. Raymond, 258 Iowa 1339, 1345, 142 N.W.2d 444, 447 (1966)
(internal quotation marks omitted).
That leaves the additional constitutional requirements of obtaining
a warrant from a neutral magistrate describing the place to be searched
and the things to be sought with particularity. Whatever else may have
been true in the past, obtaining a warrant from a judicial officer is not
particularly onerous. As was noted by a leading commentator almost
twenty years ago, there is now no reason why warrants cannot be
obtained twenty-four hours a day using modern technologies. Craig M.
58
Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468,
1492–93 (1985).
The factual assertion in Griffin that it was impracticable for a
probation officer to obtain a warrant was wrong then and it is even more
wrong today. See Howard P. Schneiderman, Conflicting Perspectives from
the Bench and the Field on Probationer Home Searches—Griffin v.
Wisconsin Reconsidered, 1989 Wisc. L. Rev. 607, 664 (1989) (noting
survey results demonstrating that a warrant requirement would not
unduly burden Wisconsin probation department). And, the
impracticable assertion has even less validity in the context of a search
by law enforcement. As demonstrated by this case, the problem was not
that it was impractical to obtain a warrant. It was very practical to
obtain a warrant. The problem was that the warrant actually obtained
was invalid and the State failed, through an apparent misunderstanding
of the law, to properly obtain a new warrant. In this case, a valid,
amended warrant could have been acquired with only modest additional
effort by law enforcement.
In addition, we do not address the validity of home visits and other
measures utilized by probation or parole officers as part of their ordinary
duties. Although Cullison plainly indicates that even a search by a
parole officer may give rise to a violation of article I, section 8, 173
N.W.2d at 539–40, we reserve this interesting question for another day.
We prefer to consider the law step by step rather than by leaps and
bounds. There is substantial authority, for instance, for the proposition
that while evidence obtained through home visits, or searches by
probation officers, may not be used in new criminal prosecutions, it may
be used for purposes of establishing a violation of probation or parole.
Indeed, this was the point of the Cullison dissent. 173 N.W.2d at 543–44
59
(Larson, J., dissenting) (stating a parole agent should have a duty to
conduct the search when he or she believes the parolee is violating
parole). Because this case does not involve the activities of a probation
officer conducting ordinary supervision of a probationer, we need not
consider issues that arise from such a factual setting.
It is an undeniable fact that in search and seizure cases, the
people who bring the cases are generally those “whose unlawfully
searched premises contained actual evidence of the actual crime they
actually committed.” Frederick Schauer, The Heroes of the First
Amendment, 101 Mich. L. Rev. 2118, 2118 (2003). But the law must be
that a search of a home “is not to be made legal by what it turns up. In
law, it is good or bad when it starts and does not change character from
its success.” United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222,
229, 92 L. Ed. 210, 220–21 (1948) (footnote omitted).
As noted by Justice Frankfurter many years ago, “[i]t is a fair
summary of history to say that the safeguards of liberty have frequently
been forged in controversies involving not very nice people.” United
States v. Rabinowitz, 339 U.S. 56, 66, 70 S. Ct. 430, 436, 94 L. Ed. 653,
660–61 (1950) (Frankfurter, J., dissenting), overruled in part by Chimel v.
California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). In
reflecting on Justice Frankfurter’s observation, Alfred Carlton, a past
president of the American Bar Association, noted that “Judges inevitably
must bear the brunt of this, and judicial independence is the cloak that
allows them to do it.” Alfred P. Carlton Jr., Preserving Judicial
Independence—An Exegesis, 29 Fordham Urb. L.J. 835, 841 (2002).
Carlton further warned against “[i]ntemperate, inaccurate, and emotional
criticism” arising from such cases that “undermines public confidence in
the impartiality of the judiciary and hence its independence.” Id.
60
We also pause to reflect on the observation in Kopf v. Skyrm:
But Casella was a criminal. He deserved to be arrested and
punished; his story stirs little sympathy, much less outrage,
in the crowd. The courts cannot be so impassive. We must
always remember that unreasonable searches and seizures
helped drive our forefathers to revolution. One who would
defend [search and seizure law] must share his foxhole with
scoundrels of every sort, but to abandon the post because of
the poor company is to sell freedom cheaply.
993 F.2d 374, 379–80 (4th Cir. 1993).
For the above reasons, we think Cullison remains good law. We
decline to overrule it. 9 The United States Supreme Court in Griffin,
Knights, and Samson has engaged in innovations that significantly
reduce the protections of the Warrant Clause of the Fourth Amendment.
We decline to join the retreat under the Iowa Constitution. We hold that
under article I, section 8, the warrant requirement has full applicability
to home searches of both probationers and parolees by law enforcement.
As a result, because evidence seized in this case was obtained
unlawfully, the motion to suppress should have been granted. We again
note that we do not address the legality of home visits or other types of
supervision by probation officers pursuant to their ordinary functions,
nor do we address the question of whether a probationer may validly
consent to warrantless home searches.
VI. Conclusion.
More than forty years ago in Cullison, this court held that under
the search and seizure provision of article I, section 8 of the Iowa
9 We
note, according to the Bureau of Justice Statistics, in 2012 there were
29,333 Iowans on probation. See Bureau of Justice Statistics, U.S. Department of
Justice, NCJ243826, Probation and Parole in the United States, 2012, app. tbl. 2 (revised
Apr. 22, 2014), available at www.bjs.gov/content/pub/pdf/ppus12.pdf. The
consequences of a contrary result in this case would be that the homes of those persons
could be subject to warrantless searches by law enforcement.
61
Constitution, a valid warrant is required for law enforcement’s search of
a parolee’s home. In this case, the State does not claim there was a valid
warrant. In the subsequent decades, the United States Supreme Court
has moved away from its reliance on warrants toward and emphasis on
standalone reasonability in its interpretation of the search and seizure
provisions of the Fourth Amendment. We decline to adopt this
innovative reasoning. We find Cullison remains good law and decline to
disturb it. As a result, the search by general law enforcement authorities
of the home in this case was unlawful under article I, section 8 of the
Iowa Constitution. We conclude the district court erred in denying the
motion to suppress.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Cady, C.J., who concurs specially, and
Waterman, Mansfield, and Zager, JJ., who dissent, each writing
separately.
62
#12–1150, State v. Short
CADY, Chief Justice (concurring specially).
The majority opinion capably resolves the issue before the court,
and I join it in full. I write separately to emphasize the importance of
independently interpreting our Iowa Constitution.
As Iowans, we are deservingly proud of a long history of rejecting
incursions upon the liberty of Iowans, particularly because we have so
often arrived to the just result well ahead of the national curve. Yet, we
cannot ignore that our history of robust protection of human rights owes
in no small part to our authority within America’s federalist system to
independently interpret our constitution. Similarly, we must not forget
that the virtue of federalism lies not in the means of permitting state
experimentation but in the ends of expanded liberty, equality, and
human dignity. See State v. Baldon, 829 N.W.2d 785, 790–91 (Iowa
2013). A court that categorically ignores these distinctly human ends
can only accomplish injustice. Thus, we have recognized that “[w]hen
individuals invoke the Iowa Constitution’s guarantees of freedom and
equality, courts are bound to interpret those guarantees.” Varnum v.
Brien, 763 N.W.2d 862, 876 (Iowa 2009); cf. Robert F. Williams, Equality
Guarantees in State Constitutional Law, 63 Tex. L. Rev. 1195, 1197
(1985) (“When faced with state constitutional equality claims, state
courts should recognize their obligation to take these provisions
seriously.”).
It goes without saying our decisions have not always been without
their detractors. As we pointed out in State v. Lyle, also decided today,
“[o]ur court history has been one that stands up to preserve and protect
individual rights regardless of the consequences.” ___ N.W.2d ___, ___
(Iowa 2014). Yet, history has repeatedly vindicated, and the people of
63
Iowa have repeatedly embraced, the bold expansions of civil,
constitutional, and human rights we have undertaken throughout the
175 years of our existence as a court. In other words, time has shown
that those decisions, not unlike our recent parolee search cases, are
unequivocally the law of this state.
Today’s decision is another step in the steady march towards the
highest liberty and equality that is the birthright of all Iowans; it will not
be the last.
Accordingly, I concur.
64
#12–1150, State v. Short
WATERMAN, Justice (dissenting).
I respectfully dissent. I would follow the unanimous decision in
United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497
(2001), to affirm our court of appeals and district court decisions
upholding the search of Short’s residence. The majority’s opinion today
is wrongly decided for the reasons set forth in Justice Zager’s dissent,
which I join in part. I write separately to reemphasize my disagreement
with our court’s departure from well-settled Fourth Amendment
precedent and to reiterate my view that State v. Baldon and State v.
Ochoa are plainly erroneous for the reasons explained by Justice
Mansfield in his Baldon dissent, which I joined. See State v. Baldon, 829
N.W.2d 785, 835–47 (Iowa 2013) (Mansfield, J., dissenting). 10 But, I
agree with Justice Zager’s conclusion that the search of Short’s residence
can be upheld under those decisions. And, I join in Justice Mansfield’s
separate dissent in this case, which addresses the majority’s ten
“established principles of independent state constitutional law.”
The majority neglects to mention that Short had a lengthy criminal
record, including multiple felony convictions. He had served time in
prison for robbery. On March 31, 2011, he pled guilty to his fourth theft-
related offense and, in lieu of incarceration, received a generous sentence
of probation on the condition that his residence could be searched
without a warrant any time a law enforcement officer had reasonable
grounds to believe contraband was present. Consent-to-search clauses
have commonly been used in parole and probation agreements to deter
10The
majority opinion today and in Baldon reviewed the use of evidence to prove
new crimes. See Baldon, 829 N.W.2d at 788–89. Both opinions leave open the question
whether the State may invoke an offender’s violation of the consent-to-search term in a
parole or probation agreement in revocation proceedings.
65
misconduct and facilitate detection of wrongdoing. Less than two
months later, while still on probation, Short committed the crime at
issue in this case by burglarizing a home, taking two flat-screen
televisions, jewelry, and a $100 gift card to Minerva’s Restaurant. He
used the gift card there and signed the reciept. The waitress and
manager later identified Short from a photograph. A magistrate found
probable cause to search his residence and issued a search warrant,
which all parties acknowledge was invalid due to an out-of-date address.
The deputies, based on inaccurate advice during a phone call with the
magistrate, wrote in the new address, executed the amended warrant,
and found the stolen property at Short’s residence. The district court,
following Knights, correctly upheld the search based on Short’s probation
agreement and diminished expectations of privacy as a felon under
supervision. I disagree with the majority’s conclusion that Short has the
same expectations of privacy as ordinary Iowans. It is unfortunate the
majority, as it did in Baldon, has again failed to enforce an offender’s
consent-to-search provision, depriving our state’s corrections program of
an important tool to encourage parolees and probationers to obey the
law.
As in several other recent decisions erroneously decided by this
majority, “[t]he validity of this consent search is solidly grounded on
Fourth Amendment search and seizure caselaw, and there is no good
reason to hold otherwise under article I, section 8 of the Iowa
Constitution.” State v. Pals, 805 N.W.2d 767, 784 (Iowa 2011)
(Waterman, J., dissenting). Today’s majority, as in Pals, Baldon, and
Ochoa, once again uses the Iowa Constitution to evade well-settled
Fourth Amendment precedent without setting forth any principled basis
for construing Iowa’s nearly identically worded search and seizure
66
provision to require greater restrictions on the law enforcement
community and elected branches. The majority fails to articulate any
standards for interpreting the same constitutional protections differently
under federal and state law. The majority is willing to reach a different
result based simply on its own conclusion that particular decisions of the
United States Supreme Court are not “persuasive.” Persuasion is in the
eye of the beholder. More restraint is warranted when interpreting our
state constitution, which by design is so difficult for the people to
amend.11
To reach its result, the majority takes an inconsistent approach to
error preservation12 and rests its analysis on a false premise—that State
11 The
people of Florida amended their state constitution’s search and seizure
provision in 1982 to require conformity with Supreme Court decisions interpreting the
Fourth Amendment. Fla. Const. art. I, § 12 (“This right shall be construed in
conformity with the 4th Amendment to the United States Constitution, as interpreted
by the United States Supreme Court.”) This amendment was in response to decisions of
the Florida Supreme Court that suppressed evidence of crimes admissible under federal
interpretations of the Fourth Amendment. See id. § 12, cmt. to 1982 amend.; State v.
Hume, 512 So. 2d 185, 187 (Fla. 1987) (noting “the amendment to section 12 was
intended, in part, to overrule our decision in [State v.] Sarmiento[, 397 So. 2d 643 (Fla.
19811]”).
12 The
majority wrongly concludes the State failed to preserve error on the
consent issue because the State used the term “waiver” in arguing the consent-to-
search provision in Short’s probation agreement should be enforced. The majority
faults the State for not developing the record on consent in the district court. The
probation agreement is part of the record. What further factual development is needed
to decide the issue here? And, why fault the State for not developing a better record on
consent in district court when Short did not argue at that time for broader rights under
the Iowa Constitution? As Justice Zager’s dissent further explains, the consent-to-
search provision is in play in this appeal and supports affirmance of the rulings
upholding the search. But, let’s take the majority at its word. The saving grace is that,
if the consent issue was waived by the State in this case, then the majority does not
decide it, and the State remains free in future cases to argue for enforcement of
probation consent-to-search agreements.
The majority asserts no party “asks us to revisit” Baldon. The majority fails to
mention that the State indeed argued at oral argument that Baldon was wrongly
decided and Fourth Amendment precedent—Knights—should be followed. Yet, the
majority has no hesitation finding broader restrictions on police searches under the
Iowa Constitution, even though Short made no such argument in the district court. To
reach that issue, the majority must find that Short’s trial counsel was ineffective. I
67
v. Cullison, a parolee-search case, was decided four decades ago under
the search and seizure provision in article I, section 8 of the Iowa
Constitution. 173 N.W.2d 533, 534–35 (Iowa 1970). That provision is
mentioned nowhere within the four corners of the majority or dissenting
opinions in that case. Rather, as further explained in Justice Zager’s
dissent today, Cullison was decided under the Fourth Amendment and is
no longer good law after Knights. Pull on the loose thread of Cullison,
and the majority’s analysis unravels.13
References to “the sanctity of the home” do not justify the
majority’s departure from settled Fourth Amendment precedent. 14 Cf.
Baldon, 829 N.W.2d at 841 (Mansfield, J., dissenting) (“If the ‘sanctity of
the home’ trumps an offender’s status, as we held in Ochoa, why has this
court repeatedly upheld sex offender residency restrictions?”). The home
has sanctity in all fifty states. This case is not an example of state courts
of last resort acting as laboratories developing constitutional doctrine in
unsettled areas, such as same-sex marriage, before the issue is squarely
decided by the Supreme Court. Rather, our court today departs from a
unanimous decision of that Court, Knights, 534 U.S. at 122, 122 S. Ct.
________________________
disagree that his trial counsel was ineffective for failing to foresee our court would
depart from Knights, a unanimous decision of the United States Supreme Court directly
on point and widely followed by other state supreme courts without any academic
criticism. We do not require criminal defense counsel to be clairvoyant. See Millam v.
State, 745 N.W.2d 719, 722 (Iowa 2008).
13 Today’s majority claims Cullison was decided under the Iowa search and
seizure clause because article I, section 8 is mentioned in the defendant’s brief in that
case. That brief was not appended to the opinion. Do we now expect lawyers to
discover hidden rulings in our opinions published a generation ago based on a citation
in an archived brief, akin to archeologists finding a long-lost temple in the jungle?
14 Would today’s majority prohibit a warrantless search of the home of an
offender serving a sentence under house arrest with an ankle bracelet monitor as an
alternative to incarceration in a state penitentiary or county jail? If so, will that
discourage use of home confinement and encourage incarceration, at greater loss of
liberty and taxpayer expense?
68
at 593, 151 L. Ed. 2d at 507, that is widely followed by our sister states
under their state constitutions.15 The majority cites no decision of any
other state supreme court declining to follow Knights under its state
constitution. Nor does the majority marshal any academic criticism of
Knights.
The majority’s departure from settled Fourth Amendment caselaw
inevitably leads to unpredictability, confusion, and instability in the law,
with multiple sets of rules applying to the same conduct. In my view, we
should return to our traditional practice of interpreting article I, section 8
of the Iowa Constitution to have the same meaning as the Fourth
Amendment, as the framers of our state constitution intended. See Pals,
805 N.W.2d at 786–87 (Waterman, J., dissenting). And, we should
15See,
e.g., State v. Raines, 857 A.2d 19, 21, 27–34 (Md. 2004) (applying Knight
framework and concluding Maryland DNA Collection Act is constitutional under both
the United States and Maryland Constitutions); State v. Anderson, 733 N.W.2d 128, 140
(Minn. 2007) (“The Supreme Court’s decision in Knights does not appear to be a sharp
or radical departure from its previous decisions or a retrenchment on its Fourth
Amendment jurisprudence with respect to probation searches. Moreover, we are not
convinced that federal precedent inadequately protects our citizens’ basic rights and
liberties.”); State v. Moody, 148 P.3d 662, 667, 668 (Mont. 2006) (citing Knights
favorably and concluding, under Montana Constitution, “home visits, as a routine and
reasonable element of supervising a convicted person serving a term of supervised
release, are not searches and are thus not subject to the reasonable cause standard”);
State v. Baca, 90 P.3d 509, 519, 520 (N.M. Ct. App. 2004) (stating “our review of Griffin
and Knights reveals no flaws” and noting “[i]n New Mexico, as well, whether a search is
unreasonable is determined by balancing the degree of intrusion into a probationer’s
privacy against the interest of the government in promoting rehabilitation and
protecting society”); State v. Maurstad, 647 N.W.2d 688, 691, 697 (N.D. 2002) (following
Knights and commenting “[w]hen reviewing the constitutionality of probationary
searches, we have interpreted the North Dakota Constitution to provide the same
protections for probationers as provided by the United States Constitution”); State v.
Kottman, 707 N.W.2d 114, 120 (S.D. 2005) (rejecting argument under state constitution
and following Knights); State ex rel. A.C.C., 44 P.3d 708, 712 (Utah 2002) (“[L]ike the
United States Supreme Court, we too have stated that whether an individual convicted
of a crime has any reasonable expectation of privacy requires a balancing of the
government’s interest in operating its institutions and the individual’s privacy
interest.”).
69
return to our long-standing tradition of following the decisions of the
highest court in the land when, as here, no departure is warranted by
any difference in the text, structure, or history of the Iowa provision.
I dissent to fire another warning shot across the bow of the ship
the majority steers in the wrong direction without a navigation system.
I. We Should Construe Article I, Section 8 of the Iowa
Constitution to Have the Same Meaning as the Fourth Amendment.
The Fourth Amendment to the United States Constitution 16 and
article I, section 8 of the Iowa Constitution 17 are worded virtually
identically and provide the same protection against unreasonable
searches and seizures. Compare U.S. Const. Amend. IV, with Iowa
Cosnt. art. I, § 8. Our court, like most state supreme courts, has
traditionally followed federal precedent in construing the same language
in the state constitution. See Robert F. Williams, The Law of American
State Constitutions, 194–95 (2009) (noting a “clear majority” of cases
“decide to follow, rather than diverge from, federal constitutional
doctrine”). Decisions of the United States Supreme Court resolve issues
that are briefed and argued by the best lawyers in the country, after
those issues have first been thoroughly vetted in the federal courts of
16The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
17The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable seizures and searches shall not be
violated; and no warrant shall issue but on probable cause, supported by
oath or affirmation, particularly describing the place to be searched, and
the persons and things to be seized.
Iowa Const. art. I, § 8.
70
appeals. Our nation’s Supreme Court decisions are binding on all
federal and state courts applying the Fourth Amendment and, unless
plainly erroneous, should be followed to interpret nearly identical
language in the state constitution. The Illinois Supreme Court reaffirmed
its adherence to federal cases to interpret its state’s constitution, stating:
This limited lockstep approach is not a surrender of state
sovereignty or an abandonment of the judicial function. It
is, instead, based on the premise that the drafters of the
[state] constitution and the delegates to the constitutional
convention intended the phrase “search and seizure” in the
state document to mean, in general, what the same phrase
means in the federal constitution.
People v. Caballes, 851 N.E.2d 26, 45 (Ill. 2006). This is equally true in
Iowa.
The timing of the adoption of the Iowa Constitution18 and the use
of nearly identical wording confirm the framers intended article I, section
8 to duplicate the same constitutional protection against unreasonable
searches and seizures found in the Fourth Amendment. Pals, 805
N.W.2d at 786 (Waterman, J., dissenting) (noting “article I, section 8 was
the Fourth Amendment ‘reenacted’ in Iowa to apply to the state” (quoting
State v. Nelson, 231 Iowa 177, 185, 300 N.W. 685, 689 (1941) (Mitchell,
J., dissenting))); see also People v. Pickens, 521 N.W.2d 797, 806 (Mich.
At the time the Iowa Constitution was enacted in 1857, the Fourth
18
Amendment limited only the federal government. See Weeks v. United States, 232 U.S.
383, 398, 34 S. Ct. 341, 346, 58 L. Ed. 652, 657–58 (1914) (applying Fourth
Amendment and exclusionary rule to federal officials, but not to municipal police
officers), overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081
(1961). A state constitutional bill of rights patterned after the Federal Bill of Rights was
therefore necessary to provide the same limitations against state governmental
intrusion on individual civil liberties. The Fourth Amendment was not applied to the
states until 1949, when the Supreme Court held the Amendment was incorporated in
the Due Process Clause of the Fourteenth Amendment, enacted after the Civil War.
Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct. 1359, 1361, 93 L. Ed. 1782, 1785–86
(1949), overruled on other grounds by Mapp, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d
1081.
71
1994) (commenting “[i]f the convention or ratifiers had intended to alter
the meaning of this provision, we can presume they would have done so
by express words” (internal quotation marks omitted)). Other state
supreme courts have reached the same conclusion.19
Today’s majority cites no historical evidence that Iowa’s founders
intended the Iowa search and seizure provision to impose greater
restrictions on law enforcement. It is, therefore, no surprise that our
state’s search and seizure caselaw has long tracked with Fourth
Amendment caselaw because we have consistently construed article I,
section 8 to have the same meaning. See, e.g., State v. Breuer, 577
N.W.2d 41, 44 (Iowa 1998) (“ ‘[T]he language of those clauses is
substantially identical and we have consistently interpreted the scope
and purpose of article I, section 8, of the Iowa Constitution to track with
See, e.g., Caballes, 851 N.E.2d at 32 (highlighting that the Illinois
19
Constitution’s search and seizure provision “was clearly modeled upon the [F]ourth
[A]mendment to the United States Constitution”); State v. Johnson, 259 P.3d 719, 722
(Kan. 2011) (“Section 15 of the Kansas Constitution Bill of Rights provides lockstep
protection to the Fourth Amendment.”); State v. Johnson, 856 P.2d 134, 138 (Kan.
1993) (“Both the Fourth Amendment and § 15 [of Kansas Bill of Rights] prohibit
unreasonable searches and seizures. We have held that the wording and scope of the
two sections are identical for all practical purposes.”); People v. Nash, 341 N.W.2d 439,
445 (Mich. 1983) (“There is no indication that . . . the people of this state wished to
place restrictions on law enforcement activities greater than those required by the
federal constitution. In fact, the contrary intent is expressed.”); State v. Wiegand, 645
N.W.2d 125, 132 (Minn. 2002) (recognizing the Fourth Amendment is “textually
identical to a provision of the Minnesota Constitution” and therefore United States
Supreme Court opinions interpreting the Fourth Amendment are “inherently
persuasive”); State v. Havlat, 385 N.W.2d 436, 440 (Neb. 1986) (“Nowhere in our
independent research of the state constitutional conventions do we find evidence that
the framers intended the explicit language of article I, § 7, to encompass more than
what it says.”); State v. Felix, 811 N.W.2d 775, 787 (Wis. 2012) (noting the court is
“particularly reluctant” to interpret the state search and seizure provision more broadly
than the Fourth Amendment “given the nearly identical language in both provisions”).
72
federal interpretations of the Fourth Amendment.’ ” (quoting State v.
Showalter, 427 N.W.2d 166, 168 (Iowa 1988))).20
Only recently has our court diverged from this precedent. This
court first overtly diverged from the modern-day search and seizure
decisions of the United States Supreme Court in State v. Cline, 617
N.W.2d 277, 293 (Iowa 2000), abrogated on other grounds by State v.
Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). The Cline court stated,
“[W]e strive to be consistent with federal constitutional law in our
20See
also Baldon, 829 N.W.2d at 837 (Mansfield, J., dissenting) (collecting “a
long line of Iowa Supreme Court cases, many of them rather recent, [that] giv[e]
deference to federal interpretations of the Fourth Amendment”); State v. Lowe, 812
N.W.2d 554, 582 (Iowa 2012) (Waterman, J., concurring specially) (“I would be very
hesitant to throw aside decades of precedent and create another discrepancy between
Fourth Amendment law and how the identically worded article I, section 8 of the Iowa
Constitution is interpreted.”); State v. McCoy, 692 N.W.2d 6, 15 (Iowa 2005) (“Because
we find no basis to distinguish the protections afforded by the Iowa Constitution from
those afforded by the federal constitution under the facts of this case, our discussion of
the defendant’s claimed seizure violation applies equally under both constitutional
provisions.”); State v. Reinders, 690 N.W.2d 78, 81–82 (Iowa 2004) (“Because the federal
and state search-and-seizure clauses are nearly identical, the construction of the
federal constitution is persuasive in our interpretation of the state provision.”); State v.
Loyd, 530 N.W.2d 708, 711 (Iowa 1995) (“[W]e interpret the scope and purpose of the
state constitutional clause to be coextensive with federal interpretations of the Fourth
Amendment.”); State v. Strong, 493 N.W.2d 834, 835–36 (Iowa 1992) (“ ‘[T]he language
of those clauses is substantially identical and we have consistently interpreted the
scope and purpose of article I, section 8, of the Iowa Constitution to track with federal
interpretations of the Fourth Amendment.”); Kain v. State, 378 N.W.2d 900, 902 (Iowa
1985) (“[O]ur interpretation of article I, section 8 has quite consistently tracked with
prevailing federal interpretations of the fourteenth amendment in deciding similar
issues.”); State v. Groff, 323 N.W.2d 204, 207–08 (Iowa 1982) (“We have often said that
where state and federal constitutional clauses contain a similar guarantee they are
deemed to be identical in scope, import, and purpose.”); State v. Roth, 305 N.W.2d 501,
507 (Iowa 1981) (“Defendant challenges the search under the Iowa Constitution as well
as the United States Constitution, but we see no reason to impose a different rule under
the state constitution.”); State v. Davis, 304 N.W.2d 432, 434 (Iowa 1981) (“The
Supreme Court of Iowa is the final arbiter of the meaning of the Iowa Constitution, but
when the federal and state constitutions contain similar provisions, they are usually
deemed to be identical in scope, import, and purpose.”); State v. Olsen, 293 N.W.2d 216,
219 (Iowa 1980) (noting the United State Supreme Court’s interpretation of the Fourth
Amendment is persuasive in construing this state’s analogous state constitutional
provision). The Ochoa court simply ignored this long line of cases.
73
interpretation of the Iowa Constitution, but we ‘jealously guard our right
and duty to differ in appropriate cases.’ ” 617 N.W.2d at 285 (quoting
State v. Olsen, 293 N.W.2d 216, 220 (Iowa 1980)). Cline held the good-
faith exception to the exclusionary rule recognized by the United States
Supreme Court did not exist under the Iowa Constitution. Id. at 293.
Cline, however, rejected a federal exception to a judge-made remedy for
constitutional violations; Cline did not impose greater restrictions on the
power of police to conduct warrantless searches. See Davis v. United
States, 564 U.S. ___, ___, 131 S. Ct. 2419, 2426, 180 L. Ed. 2d 285, 293
(2011) (noting exclusion of evidence “is not a personal constitutional
right,” but rather is a court-created prudential remedy (internal
quotation marks omitted)).21
Our court’s next retreat from Fourth Amendment precedent was
State v. Ochoa, 792 N.W.2d 260, 287–91 (Iowa 2010). The Ochoa court
held that a warrantless search of a parolee’s motel room violated the
search and seizure provision of the Iowa Constitution, even though it was
permitted under the Fourth Amendment based on United States
Supreme Court precedent. Id. at 291. The Ochoa court proclaimed:
In order to resolve any inconsistency in our prior
cases, we now hold that, while United States Supreme Court
cases are entitled to respectful consideration, we will engage
in independent analysis of the content of our state search
and seizure provisions. A Fourth Amendment opinion of the
United States Supreme Court, the Eighth Circuit Court of
Appeals, or any other federal court is no more binding upon
our interpretation of article I, section 8 of the Iowa
Constitution than is a case decided by another state
supreme court under a search and seizure provision of that
21 As
noted, the deputies obtained a warrant to search Short’s residence and
telephoned a magistrate upon discovering Short’s new address. The magistrate
mistakenly advised that the officer could write the new address on the warrant. The
State does not ask us to revisit Cline to find a narrow, good-faith exception to the
exclusionary rule under the facts of this case.
74
state’s constitution. The degree to which we follow United
States Supreme Court precedent, or any other precedent,
depends solely upon its ability to persuade us with the
reasoning of the decision.
Id. at 267 (emphasis added). The Ochoa court’s chest-thumping
assertion of judicial power marked a dramatic departure from our court’s
long-standing adherence to settled Fourth Amendment precedent on the
validity of searches. This new mindset metastasized into Pals,22 Baldon,
and today’s decision.23
Contrary to Ochoa, I consider a United States Supreme Court
decision on the Fourth Amendment to be of significantly greater
precedential weight than a decision by another state supreme court.
Why? Because, to restate the obvious, the United States Supreme
Court’s holdings are binding on all state and federal courts applying the
Fourth Amendment, and our state constitution’s search and seizure
provision has the same meaning as the federal provision.
It is indeed our court’s role to interpret the Iowa Constitution, but I
part company with the majority’s stated willingness to impose greater
22In
Pals, the majority held a consent search was involuntary under article I,
section 8 of the Iowa Constitution because the officer failed to tell the motorist he had a
right to say no to his request to look in his vehicle. 805 N.W.2d at 783. No such
disclosure was required under Fourth Amendment precedent or prior Iowa cases. See
id. 805 N.W.2d at 788 (Waterman, J., dissenting). We were taught in grade school that
the policeman is our friend. But, the police officer is not the lawyer for a motorist
pulled over for suspicion of a crime.
23The
same mindset produced today’s juvenile sentencing decisions in which our
court stands alone at the fringe of Eighth Amendment jurisprudence. See State v. Lyle,
___ N.W.2d ___, ___ (Iowa 2014) (Waterman, J., dissenting); id. at ___ (Zager, J.,
dissenting); State v. Taylor, ___ N.W.2d ___, ___ (Iowa 2014) (noting Justices Waterman,
Mansfield, and Zager, JJ., dissent without opinion). And, the same mindset earlier
allowed this court in a sharply divided opinion to misapply the rational-basis test under
the Iowa Constitution to strike down a legislative tax differential that the unanimous
Supreme Court, applying the same highly deferential test in the very same case, upheld
as constitutional under the Federal Equal Protection Clause. See Racing Ass’n of Cent.
Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004); id. at 16–17 (Carter, J., dissenting); id.
at 17–28 (Cady, J., dissenting).
75
restrictions on police and our legislature under the Iowa Constitution’s
search and seizure provision merely by deeming the Supreme Court’s
Fourth Amendment precedent unpersuasive.
A bare disagreement with the United States Supreme Court’s
interpretation of the Federal Constitution “imparts no sound
doctrinal basis to impose a contrary view under the pretext
of separately interpreting our State Constitution. Our
Constitution is more than just a device to reject or evade
federal decisions . . . .”
State v. Kottman, 707 N.W.2d 114, 119–20 (S.D. 2005) (quoting State v.
Schwartz, 689 N.W.2d 430, 438 (S.D. 2004) (Konenkamp, J., concurring
in judgment)).
The majority, citing two law professors, perjoratively labels our
court’s long-standing practice of following Fourth Amemdment precedent
to be an “aggressive maximalist” approach and a “precommitment device
preventing independent examination of the facts and law.” No court until
now has used those labels to describe the approach followed by most
state supreme courts. I doubt any of the justices of our court who
retired before Ochoa, including jurists such as C. Edwin Moore, Clay
LeGrand, or Harvey Uhlenhopp, would have agreed those labels
accurately describe their approach to search and seizure law.
Stare decisis is a “precommitment device,” is it not?24 By contrast, the
majority expressly disavows following any specific standards or criteria
for determining when to depart from settled Fourth Amendment
precedent. What label best describes the majority’s approach today?
24We invariably scrutinize the evidentiary record to determine whether precedent
is factually distinguishable. Federal courts may be divided, or certain issues may be
unsettled. And, we may decline to follow precedent found to be plainly erroneous.
Precedent may be reexamined in response to intervening changes in the law or other
circumstances. Our case-by-case adjudication is never unthinking or predetermined in
a way that forecloses such analysis. Neither should our decision-making be untethered
from precedent.
76
The majority’s recent departures from our court’s numerous
decisions following settled federal constitutional precedent undermine
the predictability and stability of our law. Revisiting settled precedent
whenever four justices of this court find prior cases “unpersuasive” leads
to serious and troubling repercussions. Too many long-settled rules are
put back into play. This subverts the goals served by the doctrine of
stare decisis. A recent admonition by the Supreme Court is worth
repeating.
[T]his Court does not overturn its precedents lightly.
Stare decisis, we have stated, “is the preferred course
because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Although “not an
inexorable command,” stare decisis is a foundation stone of
the rule of law, necessary to ensure that legal rules develop
“in a principled and intelligible fashion.” For that reason,
this Court has always held that “any departure” from the
doctrine “demands special justification.”
Michigan v. Bay Mills Indian Cmty., ___ U.S. ___, ___, 134 S. Ct. 2024,
2036, ___ L. Ed. 2d ___, ___ (2014) (citations omitted); see also State v.
Walker, 804 N.W.2d 284, 296 (Iowa 2011) (“Stare decisis is a valuable
legal doctrine which lends stability to the law . . . .” (Internal quotation
marks omitted.)); Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004)
(Cady, J., dissenting) (“It nearly goes without saying that the doctrine of
stare decisis is one of the bedrock principles on which this court is built.
It is an important restraint on judicial authority and provides needed
stability in and respect for the law.”); cf. State v. Brown, 156 S.W.3d 722,
735–36 (Ark. 2004) (Glaze, J., dissenting) (concluding majority violated
Arkansas precedent by giving state search and seizure provision different
meaning than Fourth Amendment).
77
The majority injects further instability into our law through its
mantra that our court “reserve[s] the right to apply the standard in a
different fashion.” I am not sure what that means. Does this approach
make predicting the law a guessing game?
The legitimacy of our court’s decisions rests in part on the
perception and reality that we are applying the rule of law, not our
personal preferences for what the law should be. As Justice Frankfurter
admonished, we are not “justified in writing [our] private notions of policy
into the Constitution, no matter how deeply [we] may cherish them or
how mischievous [we] may deem their disregard.” W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 647, 63 S. Ct. 1178, 1189, 87
L. Ed. 1628, 1642 (1943) (Frankfurter, J., dissenting). We are on solid
ground interpreting our state constitution consistently with United
States Supreme Court decisions construing the parallel provision in the
Federal Constitution. We are on shaky ground when we take a different
path simply because we find the federal interpretations “unpersuasive.”
“If these principles of constitutional construction were to be
ignored critics not unreasonably would declare it judicial
arrogance for courts to say that their power to construe
constitutions was limited only by the restraints courts might
impose upon themselves. Courts are not legislatures, and
neither are they constitutional framers and adopters of
constitutions. What Justice Powell said in another context is
not without relevance: ‘We should be ever mindful of the
contradictions that would arise if a democracy were to
permit general oversight of the elected branches of
government by a nonrepresentative, and in large measure
insulated, judicial branch.’ ”
Caballes, 851 N.E.2d at 36 (quoting People v. Tisler, 469 N.E.2d 147, 161
(Ill. 1984) (Ward, J., concurring)). Returning to our traditional approach
will restore legitimacy to our constitutional adjudication in this area.
78
The majority, by diverging from settled federal precedent,
contributes to a Tower of Babel-like cacophony of varying state court
interpretations of nearly identically worded search and seizure
provisions. Our court is now part of the problem, not the solution. As
one commentator observed, “state constitutional law today is a vast
wasteland of confusing, conflicting, and essentially unintelligible
pronouncements.” James A. Gardner, The Failed Discourse of State
Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992) [hereinafter Gardner].
Adherence to well-settled Fourth Amendment precedent promotes
uniformity between state and federal search and seizure law. Our sister
states have recognized the importance of uniformity in state and federal
interpretations of the same constitutional language.25 Diverging from
settled federal precedent results in two sets of rules and confusion
among the bench and bar and law enforcement over which rules to
25See,
e.g., State v. Hunt, 450 A.2d 952, 955 (N.J. 1982) (noting “enforcement of
criminal laws in federal and state courts, sometimes involving the identical episodes,
encourages application of uniform rules governing search and seizure”); State v. Gomez,
932 P.2d 1, 7–8 (N.M. 1997) (“[W]e recognize the responsibility of state courts to
preserve national uniformity in development and application of fundamental rights
guaranteed by our state and federal constitutions.” (Internal quotation marks
omitted.)); State v. Flores, 570 P.2d 965, 968 (Or. 1977) (considering “the need for a
uniform standard in the area of law under discussion” as a factor in its state
constitutional analysis); State v. Anderson, 910 P.2d 1229, 1235 (Utah 1996) (“[A]n
independent [state constitutional] analysis is not necessarily a different analysis.
Indeed, we have endeavored toward uniformity in the application of the search and
seizure requirements of the state and federal constitutions, particularly since the
respective provisions are practically identical. . . . ‘One untoward consequence of [the
opposite] approach is to impose two different and possibly conflicting constitutional
standards on law enforcement officers.’ ” (Citation omitted.) (quoting State v. Poole, 871
P.2d 531, 536 (Utah 1994) (Stewart, J., concurring)); see also Lawrence Friedman, The
Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const.
L.Q. 93, 103 (2000) (following federal precedent “is justified, at least in regard to the
enforcement of the criminal law, by an interest in uniformity, which urges the
development of identical state and federal rules to control government conduct in regard
to procedural issues”).
79
follow. It also leads to inconsistent results, whereby evidence from the
same arrest or crime could be admissible in federal court, but not state
court. See Baldon, 829 N.W.2d at 842 (Mansfield, J., dissenting) (“[W]e
now have two different sets of search and seizure rules in Iowa.”).
The Iowa bench and bar and the law enforcement community are
whipsawed by our court’s end runs around well-settled Iowa and Federal
Fourth Amendment precedent. Federal Fourth Amendment law has been
comparatively stable. See Davis, ___ U.S. at ___, 131 S. Ct. at 2433, 180
L. Ed. 2d at 301 (“Decisions overruling this Court’s Fourth Amendment
precedents are rare.”).26 The Iowa bench and bar should be able to rely
on settled federal precedent directly on point in construing the parallel
provisions of the Iowa Constitution. Will Iowa criminal defense attorneys
now feel compelled to argue divergence from Fourth Amendment
precedent on any issue to avoid a claim of ineffective assistance of
counsel, malpractice, or disciplinary charges for neglect or
incompetence—even if the position taken is contrary to long-settled
caselaw—merely because a majority of our court might find the
precedent unpersuasive? See Baldon, 829 N.W.2d at 816 (Appel, J.,
concurring specially) (citing cases finding defense counsel ineffective or
guilty of “malpractice” for failing to argue state constitutional claims).
Must Iowa lawyers do a fifty-state survey and review of the academic
literature in every case to brief why we should reject a decision of the
26 I
disagree with the majority’s contention that federal courts have “diluted”
Fourth Amendment protections. The majority relies on dissenting opinions and
commentators for that view, which is belied by the unanimous decision this term
holding police generally must obtain a warrant before searching a smart phone seized
incident to a lawful arrest. See Riley v. California, ___U.S. ___, ___, 134 S. Ct. 2473,
2495, ___ L. Ed. 2d ___ (2014).
80
highest court in the land? Or, why bother if a majority of our court can
disregard any precedent?
II. We Should Articulate Standards for Departing from Settled
Federal Precedent When Construing the Same Provisions in the Iowa
Constitution.
We, of course, have the interpretive power under our state
constitution to depart from federal precedent. Just because we can
depart does not mean we should. I disagree with the majority’s assertion
that our court should not establish “criteria” for determining when to
diverge from federal interpretations. In my view, our departures should
be based on articulated standards that mean something more than a
salute to Iowa “values” or a bald conclusion the federal precedent is
“unpersuasive.” See Schwartz, 689 N.W.2d at 444 (recognizing that the
“values” rationale “has a high potential for misuse”); Gardner, 90 Mich.
L. Rev. at 818 (“[T]he notion of significant local variations in character
and identity is just too implausible to take seriously as the basis for a
distinct constitutional discourse.”).
The battle lines for this debate are drawn in the divided decision of
the South Dakota Supreme Court in Schwartz. See generally 689
N.W.2d at 437–45; id. at 445–49 (Sabers, J., dissenting). In Schwartz,
defendants were convicted of methamphetamine possession based on
evidence obtained in a warrantless search of their curbside trash. Id. at
433. The defendants argued the South Dakota Constitution prohibited
the warrantless search and seizure of their trash. Id. at 432. As in Iowa,
the search and seizure provision of the South Dakota Constitution was
worded nearly identically to the Fourth Amendment. See id. at 435 n.1.
The United States Supreme Court squarely addressed the question
of the applicability of Fourth Amendment protections to curbside trash in
81
California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30
(1988). Greenwood held that persons who place their garbage for public
collection do not have a reasonable expectation of privacy over its
contents. Greenwood, 486 U.S. at 40–41, 108 S. Ct. at 1629, 100
L. Ed. 2d at 36–37. The Schwartz defendants argued the South Dakota
Constitution should be construed to provide broader protection. 689
N.W.2d 435. The Schwartz plurality noted a majority of state courts
follow Greenwood and applied essentially the same test as Greenwood to
reach the same result under the South Dakota Constitution. Id. The
Schwartz plurality observed, “Those jurisdictions who have decided to
part company with the Greenwood decision have generally relied upon
unique language in their state constitution to extend protection to trash
intended for collection.” Id. Two dissenting justices found Greenwood
unpersuasive and advocated for greater protection under the
South Dakota Constitution. Id. at 446 (Sabers, J., dissenting).
Two concurring opinions called for the type of analysis lacking in
today’s majority opinion and in Baldon, Pals, and Ochoa. See Schwartz,
689 N.W.2d at 437 (Zinter, J., concurring); id. at 437–45 (Konenkamp,
J., concurring in judgment). Justice Zinter admonished counsel in
future cases “to present some interpretive methodology that leads to
principled constitutional interpretation when they assert that essentially
identical language in our Constitution means something different than
the United States Constitution.” Id. at 437 (Zinter, J., concurring). A
concurring opinion by Justice Konenkamp elaborated, stating: “Whether
we can more broadly interpret our similarly worded state constitutional
provisions should be decided on a neutral set of divergence standards.”
Id. at 438 (Konenkamp, J., concurring in result). This concurrence
warned that “[w]idely divergent interpretations of similar provisions
82
create unpredictability and confusion in the law.” Id. at 439. His
concurrence went on to propose:
In deciding whether a state constitutional provision should
receive a divergent interpretation, we should examine (1) the
text of the provision at issue; (2) the territorial, legal, and
constitutional history surrounding the provision; (3) the
structural differences in the State and Federal Constitutions;
and (4) the matters of unique state tradition or concern that
bear on the meaning of the provision.
Id. at 440. 27 Justice Konenkamp, after discussing these “divergence
standards,” joined the majority opinion following Greenwood. Id. 441–
44.
Justice Konenkamp’s thorough analysis provides a useful roadmap
for determining whether an independent state constitutional adjudication
should lead to a different result than federal precedent. “Constitutional
analysis always begins with the text.” Id. at 441. His concurrence noted,
when the South Dakota Constitution was adopted in 1889, “the Federal
Bill of Rights had no binding effect on state courts,” suggesting that “the
adoption of many of the provisions [in the] State Bill of Rights . . . may
have reflected an intention primarily to duplicate corresponding federal
provisions.” Id. He observed that a difference in wording would provide
the best argument for a difference in interpretation. Id. Faced with a
27See
also Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 421 (Conn. 2008)
(detailing six factors “to be considered in construing the contours of our state
constitution so that we may reach reasoned and principled results as to its meaning”);
Hunt, 450 A.2d at 965–67 (Handler, J., concurring) (using seven divergence criteria to
analyze state constitutional provisions); Flores, 570 P.2d at 968 (utilizing four criteria
from Johansen’s New Federalism note and adding a fifth: “the need for a uniform
standard in the area of law under discussion”); Commonwealth v. Russo, 934 A.2d
1199, 1205 (Pa. 2007) (listing four criteria for “a principled consideration of state
constitutional doctrine”); State v. Jewett, 500 A.2d 233, 236–38 (Vt. 1985) (reviewing
various approaches to independent state constitutional adjudication); State v. Gunwall,
720 P.2d 808, 812–13 (Wash. 1986) (articulating six divergence criteria); Robin B.
Johansen, Note, The New Federalism: Toward a Principled Interpretation of the State
Constitution, 29 Stan. L. Rev. 297, 298 (1977) (identifying “four factors a state supreme
court should consider in making a principled interpretation of the state constitution”).
83
“substantively identical” provision, he concluded that “[n]othing in the
language itself indicates that the framers intended the state prohibition
against unreasonable searches and seizures to be broader than the
federal prohibition in the Fourth Amendment.” Id. at 442. He ended
with an appropriate cautionary admonition regarding independent state
constitutional adjudication:
In summary, to ensure that our constitutional
jurisprudence develops in a methodical and authentic way,
we must be guided by a set of interpretive principles.
Authoritative and neutral analysis of South Dakota’s
Constitution cannot advance from episodic and reactionary
borrowing of results from other state courts. Litigants must
demonstrate that the text, history, or purpose of a
South Dakota constitutional provision supports a different
interpretation from the corresponding federal provision. If
there is any place where the principle of judicial restraint
ought to deter us, it is in the area of constitutional
divergence. As Professors Whitebread and Slobogin warn,
“wide-open state [court] activism runs counter to judicial
decisionmaking goals of clarity, efficiency, and principled
reasoning. . . . [Such activism] is bad policy because it
promotes uncertainty, questionable duplication of review, and
result-oriented jurisprudence.” These words offer valid
cautions, but, in the right case, they should not discourage
us from a vigorous analysis of South Dakota’s Constitution.
Id. at 445 (emphasis added) (citation omitted). The foregoing admonition
applies with equal force here.
Our court likewise should not depart from well-settled federal
precedent without good reason. Justice Konenkamp’s “neutral set of
divergence standards” provides guidance to those who would advocate
construing an Iowa constitutional provision differently than its federal
counterpart. Such standards are missing in the majority’s analysis
today and in Ochoa, Pals, and Baldon. Those standards warrant no
departure from Knights and its Fourth Amendment progeny in this case.
84
II. Conclusion.
For generations, in countless other decisions, our court has
construed the search and seizure provision in the Iowa Bill of Rights to
be of the same purpose, scope, and effect as the Fourth Amendment. It
is this long-standing tradition of adherence to settled federal precedent
from which our court has diverged, sporadically, since Ochoa was
decided in December 2010. We do our job best as a state supreme court
by applying our own pre-Ochoa jurisprudence, which holds article I,
section 8 of the Iowa Constitution has the same meaning as the Fourth
Amendment. We should return to relying on well-settled federal
precedent on search and seizure issues.
For these reasons, and the reasons set forth in the dissents of
Justices Mansfield and Zager, I would affirm the decision of the court of
appeals and judgment of the district court upholding the search of
Short’s residence.
Mansfield, J., joins this dissent.
85
#12–1150, State v. Short
MANSFIELD, Justice (dissenting).
I join in the dissents of Justice Waterman and Justice Zager, but
write separately to respond to the majority’s ten “[e]stablished [p]rinciples
of [i]ndependent [s]tate [c]onstitutional [l]aw.” As I will attempt to show,
these are not established principles. I will respond to the majority’s ten
points in order.
1. The majority begins its list of ten principles by asserting that its
constitutional approach announced in 2010 has been “thoroughly
explored” in a majority opinion released in 2011 and a special
concurrence released in 2013. See State v. Baldon, 829 N.W.2d 785, 803
(Iowa 2013) (Appel, J., concurring specially); State v. Pals, 805 N.W.2d
767 (Iowa 2011); State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). That
should end the debate, the majority suggests, notwithstanding the clear
disconnect between this court’s 2010–2014 approach to search and
seizure and the approach it took for decades before 2010.
I respectfully disagree. Actual decisions are binding and can have
stare decisis effect, but is a philosophical approach binding? Is a
statement by the Iowa Supreme Court in one case that it gives no weight
to United States Supreme Court interpretations of the same
constitutional language binding for all future cases? I think not. Could
four Justices of the Supreme Court bind this court in the future to follow
“original intent,” “legal realism,” or “economic analysis of the law”? I
doubt it.
Furthermore, the State of Iowa has directly put at issue the
approach to be taken in this state constitutional search and seizure case.
While the State is not seeking to overturn the Ochoa, Pals, or Baldon
decisions today, it has asked this court to give deference to United States
86
Supreme Court precedent. In particular, the State asks this court to
follow United States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593,
151 L. Ed. 2d 497, 507 (2001), in which that Court unanimously upheld
a probation search similar to the one here. The State concludes in its
brief, “Short has failed to produce sufficient justification for this Court to
swim upstream against the well-accepted decision in Knights.”
Thus, we need to decide whether we give deference to Knights or
not. I believe we should.
2. The majority’s second principle is that state constitutions were
“the original protectors of individual rights.” Here, all the majority is
really saying is that America had states before it had a national
government. Of course that is true. But what is the relevance of that
point when it comes to interpreting the Iowa Constitution of 1857?
Our state did not come before the United States. We became a
state over fifty years after the Federal Bill of Rights was ratified. Our
framers adopted article I, section 8, not because it resembled something
in some other state’s colonial era constitution, but because it was
already the federal constitutional provision. So if timing and sources
matter, we should be guided by interpretations of the Fourth
Amendment.
3. Principle three is that there was a strong emphasis on
individual rights in the Iowa Constitution. To support this contention,
the majority cites us to the statements made by George Ells during the
debates over the Iowa Constitution. We should look at Ells’s actual
words, not the majority’s paraphrasing.
After offering an amendment that was adopted by the convention
to include a counterpart to the Due Process Clause in the Iowa
Constitution, Ells said:
87
I am one of that class of men who believe that that clause in
the Constitution of the United States, has been violated by
the Congress of this nation in such a manner that we would
be justified at this time, either by legal enactment or by
incorporating provisions into our constitution, in protecting
ourselves from its operation. I regard the Fugitive Slave Law
as unconstitutional, because it does not give to man the
right to defend his life and liberty by “due process of law.” In
this opinion, I expect to be at variance with my friend from
Lee, [Mr. Johnston,] and those who act with him. Now, the
committee who have offered the amendment to this second
section, did so from a desire that the Bill of Rights in the
Constitution of this State, should be as strong, in this
respect, as the Constitution of the United States. We have
seen, Mr. Chairman, that Constitution violated again and
again by the dominant party in the land, which rides rough-
shod over the necks of freemen. In common with a large
majority of the people of this State, I desire to see our
constitution contain every guarantee for freedom that words
can express. If the words “due process of law,” shall in time
be recognized by our judicial tribunals to mean what they
really do mean, “that no person shall be deprived of life,
liberty or property, without a legal proceeding based upon the
principles of the common law, and the constitution of the
United States—that every man, when his life or liberty are
imperilled, shall have the right to be tried by a jury of his
countrymen. Then, sir, that infamous Fugitive Slave Law
will become a nullity, and the American people will trample
its odious enactments in the dust.
1 The Debates of the Constitutional Convention of the State of Iowa 101–
02 (W. Blair Lord rep., 1857) (emphasis added), available at
http://www.statelibraryofiowa.org/services/collections/law-library/ia
const/iaconstdebates.
Reading Ells’s statement in its entirety, rather than the majority’s
shorthand version, he was clearly urging his colleagues to include a due
process clause in the Iowa Constitution so that it would have the same
degree of protections against a rampant majority as the United States
Constitution provided. He was not proposing a due process clause so
88
that Iowa’s courts could go on future solo missions to find new
interpretations of constitutional provisions with established meanings.28
McClure v. Owen is another example of the majority’s
overenthusiastic reading of nineteenth-century sources. See 26 Iowa
243 (1868). The majority cites McClure as an early recognition that Iowa
can “construe state constitutional provisions free from federal
precedent.” But McClure had nothing to do with the proposition we are
discussing today. The constitutional provisions being interpreted in
McClure were Iowa constitutional provisions with no counterpart in the
United States Constitution. See id. at 244.
Thus, in McClure, the court noted the United States Supreme
Court had refused to follow our court’s most recent interpretation on a
question of the authority of municipal corporations under the Iowa
Constitution. Id. at 253 (citing Gelpcke v. City of Dubuque, 68 U.S. 175,
206, 17 L. Ed. 520, 524 (1863)). This involved Iowa-specific provisions
with no parallel in the United States Constitution. See generally Gelpcke,
68 U.S. at 204, 17 L. Ed. at 525 (setting forth provisions of the Iowa
Constitution).
Along the same lines, Iowans should justly be proud of several
landmark decisions of our court, including Clark v. Board of Directors, 24
Iowa 266 (1868), and Coger v. Northwestern Union Packet Co., 37 Iowa
145 (1873). This court did not decide Clark and Coger, however, by
28The
majority notes that “during this time period the United States Supreme
Court upheld the Fugitive Slave Law from constitutional attack.” I do not follow where
the majority is heading with this point because the United States Supreme Court did
not uphold the Fugitive Slave Law until two years after Ells’s statement. See Ableman
v. Booth, 62 U.S. 506, 526, 16 L. Ed. 169, 177 (1859) (“[T]he act of Congress commonly
called the fugitive slave law is . . . fully authorized by the Constitution of the United
States.”). Ells would not have known what the United States Supreme Court was going
to do two years after he spoke.
89
disregarding contemporaneous federal interpretations of counterpart
provisions of the United States Constitution. In Clark, this court held a
provision of the 1857 Iowa Constitution providing “ ‘for the education of
all of the youths of the State through a system of common schools’ ”
required a local school board to integrate its schools. 24 Iowa at 271
(quoting Iowa Const. art. IX, div. 1, § 12 (emphasis added)). The Clark
court reached this conclusion without citing or discussing any federal
precedent or the United States Constitution. See generally id. at 269–77.
Nor is our court’s decision in Coger an example of divergence from United
States Supreme Court precedent in interpreting a parallel provision of
the Iowa Constitution. Coger presciently held that a “woman of color”
was entitled to equal accommodations under the Equal Protection Clause
of the United States Constitution without finding any broader rights
under the Iowa Constitution. See 37 Iowa at 153, 155–57. These
decisions are rightly hailed today, but they should not be cited as
justification for what this court is doing now in search and seizure law.
Also somewhat extravagant, in my view, is the majority’s claim that
our framers’ use of a semicolon rather than a comma in article I, section
8 indicates “the framers [of the Iowa Constitution] believed that there was
a relationship between the reasonableness clause and the warrant
clause.” Let’s review the federal and the Iowa provisions. First, the
Fourth Amendment:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV.
90
Now article I, section 8:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable seizures
and searches shall not be violated; and no warrant shall
issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched,
and the persons and things to be seized.
Iowa Const. art. I, § 8.
I do not think one can use this inconsequential punctuation
difference to justify a different interpretation of article I, section 8.
Notably, in Ochoa the court merely noted this difference. See 792
N.W.2d at 268–69. Now it elevates this difference into a statement of the
1857 framers’ intent.
4. The majority’s next principle is that the incorporation of federal
constitutional guarantees against the states has led to “a tendency for
the United States Supreme Court to dilute the substance of the rights.”
The Fourth Amendment, in the view of the majority, was watered down
once it became incorporated against the states under the Fourteenth
Amendment. The majority decries the United States Supreme Court
having replaced clear requirements with “vague notions of
reasonableness.”
People can decide for themselves whether this court’s recent
article I, section 8 decisions have led to greater clarity and predictability.
In my view, a rule that would sustain searches based on reasonable
suspicion of probationers who consented to such searches as a condition
of probation is straightforward and easy to apply. It was sustained
unanimously by the United States Supreme Court in Knights. See 534
U.S. at 122, 122 S. Ct. at 593, 151 L. Ed. 2d at 507. If Knights resulted
in a watering down of constitutional protections, that observation
91
escaped every member of the Supreme Court, including Justices Stevens,
Souter, Ginsburg, and Breyer.
And if Knights really involved some deviation from historic Fourth
Amendment principles, one would expect some other state court,
somewhere, to have voiced disagreement. But the majority cites no
example of a state court that has declined to follow Knights under its own
constitution. To the contrary, just next door, in State v. Anderson, the
Minnesota Supreme Court unanimously declined an invitation to depart
from Knights under the Minnesota Constitution. 733 N.W.2d 128, 140
(Minn. 2007).
In this unanimous decision, the Minnesota Supreme Court
observed:
The Supreme Court’s decision in Knights does not appear to
be a sharp or radical departure from its previous decisions
or a retrenchment on its Fourth Amendment jurisprudence
with respect to probation searches. Moreover, we are not
convinced that federal precedent inadequately protects our
citizens’ basic rights and liberties. Accordingly, we decline
Anderson’s invitation to deem the search of his residence
unreasonable under the Minnesota Constitution.
Id.
Notably, Minnesota’s counterpart to the Fourth Amendment is
worded quite similarly to Iowa’s article I, section 8, including the
presence of a semicolon between “violated” and “and.” Compare Minn.
Const. art. I, § 10, with Iowa Const. art I, § 8.
5. In principle number five, the majority contends that
“lockstepping state law to federal precedents is not a humble or
minimalist approach, but is an aggressive and maximalist approach to
the law.” This is a straw man attack because no member of this court
has questioned its authority to independently interpret Iowa’s
Constitution. The issue is one of deference—do we exercise our
92
substantial authority “in the search and seizure area with a degree of
self-imposed modesty and restraint”? See Baldon, 829 N.W.2d at 843
(Mansfield, J., dissenting).
I do not understand the basis for the viewpoint that we are being
“humble” when we reject precedents from the United States Supreme
Court and state supreme courts around the country and conclude, by
ourselves, that a warrant is always necessary to search a home absent
exigent circumstances (or maybe consent).
The logic of the majority’s opinion would also require a warrant
before searching the home of a person who is under house arrest. Does
that make sense?
The implication of the majority’s position is that one is being
“humble” when one finds new constitutional rights and “maximalist”
when one does not. This is certainly open to question. In fact, if we look
at what transpired, tragically, between In re Ralph, 1 Morris 1 (Iowa
1839), and Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691
(1857), we have a statutory interpretation of an act of Congress (In re
Ralph) being overridden when the act was declared unconstitutional on
the ground that it violated some previously undiscovered constitutional
interpretation (Dred Scott).
Both cases involved a slave who entered free territory. In In re
Ralph, the slave had entered Iowa with the consent of his master, albeit
on condition that he pay a certain amount to his master “as the price of
his freedom.” 1 Morris at 6. The Supreme Court of the Territory of Iowa,
interpreting the Missouri Compromise of 1820, held that because Iowa
was a free territory, Ralph became free once he entered Iowa with “the
understanding of all parties that the slave was going to become a
permanent resident of the free state or territory.” Id.
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In Dred Scott, the United States Supreme Court held that Dred
Scott could not obtain his freedom, despite the fact that he had been
brought by his master into free territory voluntarily and had spent
considerable time there. 60 U.S. (19 How.) at 454, 15 L. Ed. at 721. In
so ruling, the Court struck down as unconstitutional the same Missouri
Compromise on which In re Ralph had relied:
[A]n act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came
himself or brought his property into a particular Territory of
the United States, and who had committed no offence
against the laws, could hardly be dignified with the name of
due process of law.
....
Upon these considerations, it is the opinion of the
court that the act of Congress which prohibited a citizen
from holding and owning property of this kind in the
territory of the United States north of the line therein
mentioned, is not warranted by the Constitution, and is
therefore void; and that neither Dred Scott himself, nor any
of his family, were made free by being carried into this
territory; even if they had been carried there by the owner,
with the intention of becoming a permanent resident.
Id. at 450–52, 15 L. Ed. at 719–20.
In my view, you can only draw the lesson from In re Ralph and
Dred Scott that courts should be constitutional innovators if you
disregard what those decisions actually say.
Since the majority accuses the dissenters of utilizing “what
Professor Adrian Vermeule refers to as a ‘precommitment device,’ ” it is
worth reading the relevant section of Professor Vermeule’s article. Here it
is:
On this picture, free-speech doctrine is partly a judicial
precommitment device and partly a prophylactic rule. It is a
precommitment device insofar as judges devising free-speech
doctrine at time 1 worry that at time 2 their own cognition or
decision-making processes will be affected by some
overpowering influence. (In the free-speech context, the
94
influence might be the social exigency that provoked the
political suppression of speech, or the offensiveness of the
speech itself.) So the judges restrict their choices at time 2
by announcing, at time 1, a rule that will prevent their
future selves from surrendering to the passions of the
moment. It is a prophylactic device insofar as judges
choosing free-speech rules at time 1 worry, not about their
own future cognition, but about the cognition of other judges
deciding future cases, either judges of subordinate courts or
future members of the very court that devised the rule at
time 1. Here the judges formulate legal doctrine in order to
restrict other judges’ future choices.
Adrian Vermeule, The Judicial Power in the State (and Federal) Courts,
2000 Sup. Ct. Rev. 357, 366–67 (2000) (footnotes omitted). I do not
know what this verbiage means but I am confident it will not help me in
deciding whether the search of Mr. Short’s residence in this case was
lawful.
6. Next, the majority contends that there is a “double irony” in
giving deference to United States Supreme Court interpretations of the
Fourth Amendment. I will begin with the majority’s first irony. The first
irony is that at a time when “societies advocate renewal of federalism by
returning power to the state, it is ironic that an exception is made for
state judicial power.”
I am not aware of any clamoring by society to give judges more
power to strike down laws. The federalism movement generally focuses
on two goals: (1) restraining the power of the federal government; and (2)
giving states a greater ability to decide their own destiny. Expansive,
idiosyncratic interpretation of article I, section 8 serves neither goal. As I
pointed out in Baldon, federal officials are not bound by article I, section
8, and if the evidence from Short’s house in this case had been used to
prosecute Short on a federal charge, he would have no recourse. See
Baldon, 829 N.W.2d at 842 (Mansfield, J., dissenting). So, whatever one
95
may say about the majority’s search and seizure jurisprudence, it is not
a bulwark against federal power.
Nor is the majority giving Iowans a greater opportunity to choose
their own destiny. Rather, it is overriding a determination by Iowa’s
elected branches that searches, upon reasonable suspicion of persons
who have been sentenced to probation, are an appropriate way to
rehabilitate the defendant and protect the community. See, e.g., Iowa
Code § 907.6 (2011) (“Probationers are subject to the conditions
established by the judicial district department of correctional services
subject to the approval of the court, and any additional reasonable
conditions which the court or district department may impose to promote
rehabilitation of the defendant or protection of the community.”).
The majority’s second irony runs something like this: (1) the
United States Supreme Court’s jurisprudence is confusing and not
uniform, and (2) the Iowa Supreme Court will be able to straighten things
out and provide uniformity. I think this overestimates the wisdom of this
court. Justice Scalia, whose observation about “inconsistent
jurisprudence” is quoted with approval by the majority, advances the
view that we should go back to 1791. See Acevedo v. California, 500 U.S.
565, 583, 111 S. Ct. 1982, 1993, 114 L. Ed. 2d 619, 636 (1991)
(Scalia, J., concurring in judgment). If a warrant was required for a kind
of search then, it should be required for the same kind of search now.
One can quibble with that approach, but it is a coherent doctrine. What
is the majority’s guiding principle other than a general hostility to
warrantless searches?
7. The majority then goes on to say that any lack of uniformity
between federal and Iowa search and seizure law “does not create a
96
substantial burden on professional law enforcement.” I question this
statement.
I do not agree that all court decisions are perfect and equal. Some
court decisions create needless burdens because they have incomplete
reasoning, leave questions unanswered, contain unneeded dicta, or
threaten to go in a direction without actually going there. No judge
should ever assume that applying her or his decision will be an easy
task, even for professionals.
But this gets back to my original point. When we choose to follow
Federal Fourth Amendment precedent, we are following standards that
have already been put into practice around the country. Those decisions
have been vetted and not only by their authors. So the unanticipated
consequences of those decisions, to a large degree, have already emerged
and been addressed by subsequent decisions. This is the whole idea of
precedent.29
29 The
majority claims to be following this court’s own precedent of State v.
Cullison, 173 N.W.2d 533 (Iowa 1970). At the risk of repeating what my colleagues
Justice Waterman and Justice Zager have said in their dissents in the present case and
what I said in my Baldon dissent, Cullison was a Fourth Amendment case. It was
criticized at the time for being a misapplication of the Fourth Amendment, see
J. Richard Bland, Case Note, 19 Drake L. Rev. 481, 481 (1970), and is no longer good
law because its view of the Fourth Amendment has been superseded by subsequent
United States Supreme Court decisions.
In Ochoa, this court twice acknowledged that Cullison was a Fourth Amendment
decision before claiming otherwise at the end of the opinion. First the court said, “[T]his
court’s decision in [Cullison] . . . held that a parolee did not surrender his Fourth
Amendment rights by virtue of his status as a parolee.” Ochoa, 792 N.W.2d at 264.
And then the court said, “Rejecting the stripping and diluting approaches, the [Cullison]
majority held that a parolee is afforded the same rights as any other person under the
Fourth Amendment.” Id. at 286. Toward the end of its opinion the court
recharacterized Cullison as having “held that the warrant and probable cause
requirements of article I, section 8 are fully applicable to searches of parolees’ homes.”
Id. at 287.
As noted by Justice Zager, those who would view Cullison as a decision based on
article I, section 8 face the considerable obstacle that the decision never mentioned
article I, section 8.
97
When we embark on our own path, we do not know what the
consequences will be. For example, will the majority’s ruling in this case
lead to fewer grants of probation and a higher rate of incarceration? I do
not think the majority knows.
The majority also asserts that its approach will not burden
attorneys because the work required to develop state constitutional law
arguments is “not overwhelming.” Here, I agree with the majority. Even
when the briefs do not contain arguments under the Iowa Constitution,
this court has been repeatedly willing to make the arguments for the
litigants and decide them. In fact, it almost seems as if a lawyer in this
court would be wiser not to develop an Iowa constitutional argument. A
litigant who actually writes up an argument generally has to stand or fall
on that argument, but a litigant who merely refers to the Iowa
Constitution in passing gets the benefit of whatever theory this court
decides to develop.
8. The majority’s eighth principle is that it is better not to develop
a set of “criteria” for when this court will deviate from federal precedent.
The majority says we will simply exercise “our best, independent
judgment of the proper parameters of state constitutional commands.”
I respectfully suggest we owe the citizens of the state a bit more
than this. We owe them our best independent judgment, to be sure, but
that independent judgment should be tempered with respect for those
who came before us and grappled with the same issues.
9. The majority’s ninth principle is that when we are dealing with
parallel state and federal constitutional provisions and parties do not
advocate a separate Iowa constitutional standard, this court will
generally apply the standard set forth in federal constitutional caselaw,
but reserve the right to do so more stringently. See, e.g., State v. Kooima,
98
833 N.W.2d 202, 206 (Iowa 2013); State v. Tyler, 830 N.W.2d 288, 291–
92 (Iowa 2013). I am puzzled why the majority mentions this alleged
principle here because it is not following it today.
Needless to say, this approach, amorphous though it may be,
involves at least some degree of deference to federal precedent.
The majority’s Ochoa-Pals-Baldon approach, however, is different.
It gives no weight to federal precedent. According to the majority today,
“we reach our decisions independently of federal constitutional analysis.”
Thus, in Ochoa, this court said, “The degree to which we follow
United States Supreme Court precedent, or any other precedent,
depends solely upon its ability to persuade us with the reasoning of the
decision.” 792 N.W.2d at 267. We said so even though the defendant
had not urged a separate interpretation of article I, section 8. See
Baldon, 829 N.W.2d at 837 (Mansfield, J., dissenting) (noting that Ochoa
had not asserted that the state constitutional provision should be
interpreted differently than the Fourth Amendment). In Pals, we again
said that United States Supreme Court precedent was entitled to no
deference, even though the defendant had not urged a different standard.
See 805 N.W.2d at 771 (stating the issue presented); see also id. at 784–
85 (Waterman, J., dissenting) (noting Pals never argued the Iowa
Constitution provided broader protection than the Fourth Amendment).
In summary, if you read Ochoa, Pals, Baldon, and today’s opinion,
federal constitutional precedent gets no deference regardless of what the
defendant argues. But at other times, even when the case involves
article I, section 8, this court generally follows the federal framework in
the absence of separate argument. See, e.g., Kooima, 833 N.W.2d at 206;
Tyler, 830 N.W.2d at 291–92. Hence, in my view, the majority’s ninth
principle undermines the overall concept it is intended to support.
99
10. In its tenth and final principle, the majority again claims the
mantle of precedent for itself. It says that it is simply reaffirming State v.
Cline, 617 N.W.2d 277 (Iowa 2000), Ochoa, Pals, and Baldon. I disagree
that Cline should be categorized with Ochoa, Pals, and Baldon for
reasons I have previously discussed. Baldon, 829 N.W.2d at 838–39
(Mansfield, J., dissenting) (“[Cline] was about remedy, not right.”). Cline
observed that the Fourth Amendment and article I, section 8 “are
generally deemed to be identical, in scope, import, and purpose” and
applied the same analysis under both provisions to the question of
whether a violation had occurred. 617 N.W.2d at 281–82 (citation and
internal quotation marks omitted).
The tenth principle is really just the first principle making an
encore. The majority believes it is settled law (since December 2010) that
United States Supreme Court search and seizure decisions are entitled to
no more deference than a law review article. I continue to question that
proposition and therefore file this dissent.
Waterman and Zager, JJ., join this dissent.
100
#90/12–1150, State v. Short
ZAGER, Justice (dissenting).
I respectfully dissent. I believe the search in this case was
constitutional under both the State and Federal Constitutions. I
disagree with the majority’s framing of the issue and the majority’s
reliance on State v. Cullison, 173 N.W.2d 533 (Iowa 1970), as controlling
precedent on this issue. Though Cullison has some minimal relevance to
the issue presented, I would interpret our constitution according to
developments in search and seizure jurisprudence since that time and
according to the particular circumstances of this case. Under that
analysis, I would hold the search in this case was constitutional.
The majority curiously sidesteps the true issue in this case, which
was unanswered in Ochoa and Baldon. In doing so, the majority departs
from the incrementalist approach we have recently taken in search and
seizure cases under the Iowa Constitution. See State v. Kern, 831
N.W.2d 149, 170 (Iowa 2013) (declining to consider whether the special-
needs doctrine was viable under article I, section 8 in the absence of
facts “to support an application of the doctrine in a way that reveals its
purpose and rationale”); State v. Baldon, 829 N.W.2d 785, 800 (Iowa
2013) (“The narrow question before us is whether the government can
conduct the search based solely on consent required to be given by
parolees as a condition of release from prison.”); State v. Ochoa, 792
N.W.2d 260, 291 (Iowa 2010) (emphasizing the broader questions being
left unanswered). Under this approach, we have decided search and
seizure cases according to the facts presented, not according to a
selective reformulation of those facts. See Kern, 831 N.W.2d at 170; see
also Baldon, 829 N.W.2d at 801 (“We have no occasion in this case to
consider other grounds available to the State to justify such a search.”).
101
The steps taken in these cases may have been small, but at least they
have been based on the unique circumstances of the cases before the
court.
When he was placed on probation, Short executed a probation
agreement under which he consented to a search of his person, property,
place of residence, vehicle, and personal effects at anytime, with or
without a search warrant, “by any probation officer or law enforcement
officer having reasonable grounds to believe contraband is present.”
(Emphasis added.) The district court in its order referred to this
language as a “waiver.” There is no dispute that the probation agreement
contained consent-to-search language.
In addition, the district court found the search of Lorenzen’s
apartment was based upon probable cause, even after acknowledging the
search warrant itself was defective. Short never challenged this
probable-cause finding for the search. Nevertheless, the majority
characterizes the officers’ individualized suspicion as only “reasonable
suspicion.” I believe, in light of the district court’s undisputed finding of
probable cause, coupled with the consent language of the probation
agreement and our caselaw, we should address whether under the
Federal and Iowa Constitutions, general law enforcement authorities may
constitutionally conduct a warrantless search of a probationer based on
the individual’s waiver of his search and seizure rights and probable
cause. 30 The majority elects to avoid the consent issue altogether,
critically diminishing its persuasiveness and effect.
30The
majority is correct that the State did not use the word “consent” in its
brief. The State did, however, devote significant discussion to Short’s “waiver” of his
search and seizure rights executed as part of his probation agreement. The district
court did the same, as did the county attorney and Short’s trial attorney. As the
Seventh Circuit Court of Appeals has noted in a similar case, “Constitutional rights like
102
The flaws of the majority’s analysis do not end with the framing of
the issue. In relying on Cullison, the majority asserts “[t]here can be no
question that Cullison involves a holding under the Iowa Constitution.”
While this is true, Cullison does not mention article I, section 8, and it
clearly was not decided on this basis. A tradition carrying through this
court’s history, and continuing down to the present, is for this court,
when interpreting a provision of the Iowa Constitution, to quote the
provision, see, e.g., Ochoa, 792 N.W.2d at 268 (quoting article I, section
8); State v. Cline, 617 N.W.2d 277, 281 n.2 (Iowa 2000) (same), abrogated
on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa
2001); Lee Enters., Inc. v. Iowa State Tax Comm’n, 162 N.W.2d 730, 736
(Iowa 1968) (quoting article III, section 29); Sperry & Hutchinson Co. v.
Hoegh, 246 Iowa 9, 18–19, 65 N.W.2d 410, 416 (1954) (quoting article I,
section 6), or to state the rule of the provision, see, e.g., Cline, 617
N.W.2d at 281 (paraphrasing article I, section 8); State v. Carter, 161
N.W.2d 722, 724 (Iowa 1968) (paraphrasing article I, section 8); State v.
Cameron, 254 Iowa 505, 511, 117 N.W.2d 816, 819 (1962) (paraphrasing
article I, section 10), overruled on other grounds by State v. Bowers, 661
N.W.2d 536, 543 (Iowa 2003). If not directly quoting or paraphrasing the
provision, at least it has been mentioned. See, e.g., State v. Tonn, 195
Iowa 94, 103, 191 N.W. 530, 534 (1923) (mentioning the identity between
________________________
other rights can be waived, provided that the waiver is knowing and intelligent, as it
was here.” United States v. Barnett, 415 F.3d 690, 691 (7th Cir. 2005). Thus, despite
the absence of the word “consent,” the issue of Short’s waiver of his search and seizure
rights is highly relevant and properly considered as part of the issue before this court.
It is clearly erroneous not to discuss consent and waiver in deciding this case.
Also, as is discussed later in this opinion, almost the entirety of the majority
opinion in Baldon analyzes the parole agreement from the viewpoint of consent and the
voluntariness of the consent-to-search agreement. The State also argued at oral
argument that it was relying on the consent provision of the probation agreement itself
in support of the search.
103
the wording of article I, section 8 and the wording of the Fourth
Amendment), abrogated by Cline, 617 N.W.2d at 291.31 If Cullison was
interpreting article I, section 8, as the majority claims, then the case is a
distinct and inexplicable oddity. For Cullison does not quote article I,
section 8, and neither does it state the provision’s rule. Nowhere does
Cullison even mention article I, section 8 in either the majority opinion or
dissents.
Most conspicuous in Cullison is the analogous federal
constitutional provision, the Fourth Amendment. That constitutional
provision is quoted once in its entirety. See Cullison, 173 N.W.2d at 538
(quoting Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730,
18 L. Ed. 2d 930, 935 (1967)). Additional references to the Fourth
Amendment are also scattered throughout. See, e.g., id. (noting that, “in
the field of administrative processes involving health and safety of the
people, Fourth Amendment rights are now fully respected”). Indeed, the
court mentioned the Fourth Amendment more than ten times in an
analysis that spans fewer than seven pages in the North Western
Reporter. See, e.g., id. at 536 (“The foregoing discloses some tribunals
. . . , Strip a parolee of all Fourth Amendment rights while others Dilute
them.”). In addition to those references to the Fourth Amendment, the
court referred to the Fourteenth Amendment. The court noted that “the
Fourth Amendment is enforceable against the States through the
Fourteenth Amendment.” Id. at 538. Were the court interpreting the
Iowa Constitution, this statement would have been superfluous. Both
31In
keeping with this tradition, the majority today quotes article I, section 8 in
full. In addition, the majority also mentions article I, section 8 more than thirty times.
There can be no doubt the court in this case is interpreting article I, section 8.
104
the incorporation doctrine and the Fourteenth Amendment are irrelevant
to the enforceability of the Iowa Constitution’s repository of protections.32
Also, while the resolution of the issue in Cullison caused
dissension among the court’s members, it seems they were able to agree
on one important point: the constitutional provision the court was
interpreting. Both dissents, like the majority opinion, mentioned the
Fourth Amendment. See id. at 542 (Larson, J., dissenting) (“[T]he
protection afforded by the Fourth Amendment to the United States
Constitution is only against unreasonable searches . . . .”); id. at 544
(Snell, J., dissenting) (discussing Fourth Amendment search and seizure
protections). And, like the majority opinion, neither dissent mentioned
article I, section 8. Thus, Cullison was a 5–4 decision that, in addition to
a majority opinion, consisted of two dissenting opinions, and no justice
even mentioned article I, section 8 of the Iowa Constitution.
Yet, in spite of the invisibility of article I, section 8 in Cullison, the
majority in this case unequivocally asserts the case’s holding is under
that provision. I would draw the opposite conclusion in the face of the
unmistakable, explicit indications to the contrary. Cullison is without
question not a holding under article I, section 8 of the Iowa Constitution.
That being so, I would conclude Cullison is not substantive authority
32 As
the majority notes, the Iowa Constitution does not go unmentioned in
Cullison. See 173 N.W.2d at 537 (setting forth the text of article II, section 5 of the Iowa
Constitution). The Iowa constitutional provision to which the Cullison court refers is,
however, not article I, section 8, but rather article II, section 5, see id., which strips
voting rights from individuals convicted of infamous crimes, see generally Chiodo v.
Section 43.24 Panel, 846 N.W.2d 845 (Iowa 2014). Thus, Cullison discusses three
constitutional provisions: the Fourth Amendment, its necessary constitutional
companion, the Fourteenth Amendment, and article II, section 5 of the Iowa
Constitution. According to the majority, Cullison’s holding is not under any of these
provisions, odd as it may seem.
105
under article I, section 8, and we are not bound to follow Cullison in this
case.
Even if one were to concede somehow that Cullison was
interpreting article I, section 8 of the Iowa Constitution, there are
numerous reasons not to apply Cullison’s holding to this case. See State
v. Bruce, 795 N.W.2d 1, 3 (Iowa 2011) (noting despite the principle of
stare decisis we must reconsider unsound previous decisions). First, we
have since Cullison held that when interpreting this state’s constitution
we rely on federal cases interpreting the Federal Constitution only to the
extent that the reasoning of those cases persuades us. See Ochoa, 792
N.W.2d at 267. Cullison not only relied almost completely on federal
cases while doing little analysis to establish their persuasiveness, but
also hinted that, if the United States Supreme Court had addressed the
issue presented in the case, it would have deferred to that tribunal’s
interpretation. See 173 N.W.2d at 535. Neither approach is a
permissible method of resolving cases under our state’s organic
document. See Ochoa, 792 N.W.2d at 267; Cline, 617 N.W.2d at 285. An
earlier case’s inconsistency with our established current decisional
methods almost compels us to reconsider the case’s continued viability.
There are also factual and legal distinctions in Cullison that compel
us to reconsider its continued validity. Cullison’s conclusion was based
in part on reasoning that is now questionable in light of subsequent
developments. Cullison cited a bevy of federal cases and secondary
authorities for the proposition a parolee’s right to equal protection might
be violated by admitting evidence obtained in a warrantless search. See
173 N.W.2d at 538. Afterward, Griffin v. Wisconsin, Samson v. California,
and United States v. Knights upheld warrantless searches of probationers
and parolees. See Samson, 547 U.S. 843, 857, 126 S. Ct. 2193, 2202,
106
165 L. Ed. 2d 250, 262 (2006); Knights, 534 U.S. 112, 122, 122 S. Ct.
587, 593, 151 L. Ed. 2d 497, 507 (2001); Griffin, 483 U.S. 868, 876, 107
S. Ct. 3164, 3169–70, 97 L. Ed. 2d 709, 719 (1987). Clearly, the
development of this area of the law shows this concern no longer serves
as a basis for according offenders and law-abiding citizens equal search
protections.
What makes Cullison most factually distinct is its lack of a
consent-to-search provision in the parole agreement. This is a
significant reason why Cullison is distinquishable from Baldon, in which
such provisions became the focus of our analysis of consent and waiver.
See Baldon, 829 N.W.2d at 800–01 (explaining the issue before the
court). The majority chooses to ignore this important distinction without
further analysis, which makes the opinion suspect. How can the
majority decide this case without discussing the consent-to-search
provision contained in Short’s probation agreement?
Also, a parole officer performed the search in Cullison. See 173
N.W.2d at 539–40. We have previously drawn a distinction between
searches performed by general law enforcement officers and searches
performed by corrections authorities; the justifications for the two
searches are different. See Kern, 831 N.W.2d at 171 (explaining a search
of a parolee could not fit “the special-needs rubric” because “the search
was significantly entangled with a larger law enforcement operation”);
Ochoa, 792 N.W.2d at 289 (distinguishing searches performed by parole
officers and searches performed by general law enforcement). In this
case, general law enforcement performed the search. Thus, the reasons
used to reject the parole search in Cullison are not importable to this
case. This further diminishes the precedential versatility of Cullison.
107
Finally, the search in Cullison, as in Ochoa, was not supported by
any level of individualized suspicion. See Ochoa, 792 N.W.2d at 288
(noting police officer performed search without any cause); Cullison, 173
N.W.2d at 540 (concluding the presearch reasonable or probable cause,
essential to its validity, was not present there or established to support
the search). Because there was not even an argument of reasonable
suspicion or probable cause, the court did not have to consider whether
some level of individualized suspicion might have constrained officer
discretion to the point of making the warrantless search constitutionally
permissible. Here, there was undisputed probable cause to support the
search of Short’s residence. Cullison thus presented a clearly
distinguishable legal and factual scenario for the decision. For all these
reasons, the broad principle espoused in Cullison is not appropriately
applicable to the concrete facts presented by this case. Cf. Kern, 831
N.W.2d at 170 (“[T]he need for new legal doctrines is best considered
when facts exist in a case to support an application of the doctrine in a
way that reveals its purpose and rationale.”). Therefore, I would
conclude the broad holding adopted by the majority, relying on Cullison,
that a search warrant is required under all circumstances for the search
of any person’s home, does not prevent us from treating probationers
differently from law-abiding citizens for purposes of article I, section 8.
The determination that Cullison’s holding does not control the
outcome of this case is just the starting point of the analysis. As the
majority recognizes, we have repeatedly declined to dogmatically
interpret article I, section 8 in the manner the United States Supreme
Court interprets the Fourth Amendment, despite the obvious textual
similarities between the two provisions. See, e.g., id. at 170 (explaining
the Fourth Amendment special-needs doctrine and concluding the
108
doctrine cannot be used “to make an end-run” around parolees’ rights
under the Iowa Constitution); Ochoa, 792 N.W.2d at 267 (holding
searches and seizures are to be analyzed independently under the Iowa
Constitution); Cline, 617 N.W.2d at 283 (declining “to adopt a good faith
exception to Iowa’s exclusionary rule under the Iowa Constitution”).
Indeed, were we “to blindly follow federal precedent,” we would be
abdicating our “constitutional role in state government.” Cline, 617
N.W.2d at 285.
That said, we have not discarded federal precedents from the
panoply of available persuasive sources. In Ochoa, we declined to follow
the Supreme Court’s interpretation of the Fourth Amendment in Samson,
taking instead a constitutional path under our own constitution that
rejected warrantless searches of parolees “without any particularized
suspicion or limitations to the scope of the search.” Ochoa, 792 N.W.2d
at 291; see also Samson, 547 U.S. at 857, 126 S. Ct. at 2202, 165
L. Ed. 2d at 262 (holding “the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee”). In
doing so, however, we emphasized the “respectful consideration” to which
Supreme Court precedents are entitled. See Ochoa, 792 N.W.2d at 267;
cf. Baldon, 829 N.W.2d at 790 (“In the final analysis, our right under
principles of federalism to stand as the final word on the Iowa
Constitution is settled, long-standing, and good law.”). Keeping that in
mind, I turn now to those precedents.
The Supreme Court has twice upheld warrantless searches of
probationers under the Fourth Amendment. In Griffin, probation officers
conducted a warrantless search of a probationer’s home under a
Wisconsin probation regulation that allowed warrantless searches based
on “reasonable grounds.” 483 U.S. at 871, 107 S. Ct. at 3167, 97
109
L. Ed. 2d at 715 (internal quotation marks omitted). The Supreme Court
upheld the search, finding it justified by the special needs of Wisconsin’s
probation system. See id. at 876, 107 S. Ct. at 3169–70, 97 L. Ed. 2d at
719. Though representative of the Supreme Court’s overall search and
seizure jurisprudence, Griffin’s reasoning is distinguishable because
police and sheriff’s deputies, not probation officers, searched Short. See
5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 10.10(c), at 542 (2012) [hereinafter Lafave, Search and
Seizure] (observing a search performed by police officers could not pass
muster under Griffin’s special-needs rationale).
Later, in Knights, the Supreme Court confronted an issue very
similar to one before us in this case. 534 U.S. at 118, 122 S. Ct. at 591,
151 L. Ed. 2d at 504. There, a probationer, who was subject to a
probation-search condition similar to that contained in Short’s probation
agreement, was suspected of vandalizing a business dozens of times. See
id. at 114–15, 122 S. Ct. at 589, 151 L. Ed. 2d at 502–03. After a police
detective observed suspicious activity outside the probationer’s
apartment and viewed suspicious objects in the vehicle of the
probationer’s accomplice, the detective, who knew of the probation-
search condition, searched the probationer’s apartment. See id. at 115,
122 S. Ct. at 589, 151 L. Ed. 2d at 503. The search uncovered evidence
suggesting the probationer was the vandal, and he was arrested on
federal criminal charges. See id. at 115–16, 122 S. Ct. at 589, 151 L. Ed.
at 503.
Knights moved to suppress the evidence obtained during the
warrantless search of his apartment, arguing the search violated the
Fourth Amendment. See id. at 116, 122 S. Ct. at 590, 151 L. Ed. 2d at
503. The district court found law enforcement had “ ‘reasonable
110
suspicion’ to believe that Knights was involved with incendiary
materials,” but “nonetheless granted the motion to suppress on the
ground that the search was for ‘investigatory’ rather than ‘probationary’
purposes.” See id. The Court of Appeals for the Ninth Circuit affirmed,
relying on its earlier decisions to hold the search condition in Knights’s
probation order “ ‘must be seen as limited to probation searches, and
must stop short of investigation searches.’ ” See id. (quoting
United States v. Knights, 219 F.3d 1138, 1142–43 (9th Cir. 2000)).
A unanimous Supreme Court reversed the ruling of the court of
appeals. See id. at 122, 122 S. Ct. at 593, 151 L. Ed. 2d at 507
(reversing and remanding for further proceedings). The Supreme Court
first noted that the Supreme Court of California had already upheld
searches pursuant to this California probation condition “ ‘whether the
purpose of the search is to monitor the probationer or to serve some
other law enforcement purpose.’ ” See id. at 116, 122 S. Ct. at 590, 151
L. Ed. 2d at 503 (quoting People v. Woods, 981 P.2d 1019, 1027 (Cal.
1999), cert. denied, 529 U.S. 1023, 120 S. Ct. 1429, 146 L. Ed. 2d 319
(2000)).
The Supreme Court declined to base its holding on the “consent”
rationale argued by the Government in cases such as Zap v. United
States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), and
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d
854 (1973). See Knights, 534 U.S. at 118, 112 S. Ct. at 591, 151
L. Ed. 2d at 504–05. The Supreme Court found it did not need to decide
whether acceptance of the search condition constituted consent in the
Schneckloth sense of a complete waiver of Fourth Amendment rights. See
id. at 118, 122 S. Ct. at 591, 151 L. Ed. 2d at 505. Instead, it concluded
that the search of Knights’s apartment was reasonable under its “general
111
Fourth Amendment approach of ‘examining the totality of the
circumstances,’ ” considering the probation search condition as being a
salient circumstance. Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117
S. Ct. 417, 421, 136 L. Ed. 2d 347, 354 (1996)).
In rejecting Knights’s argument, the Supreme Court focused on the
balance of the individual’s privacy interest and the government’s
legitimate interests. See id. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d at
505. According to the Supreme Court, a probationer has a diminished
expectation of privacy because probation is a criminal sanction that
reasonably deprives an individual of freedoms ordinarily enjoyed by law-
abiding citizens. See id. Further, the Court reasoned the government
has a legitimate interest in supervising probationers, given their high
probability of reoffending. See id. at 120–21, 122 S. Ct. at 592, 151
L. Ed. 2d at 506. After weighing the interests, the Supreme Court
unanimously upheld the police detective’s warrantless search of the
probationer’s apartment “supported by reasonable suspicion and
authorized by a condition of probation.” Id. at 122, 122 S. Ct. at 593,
151 L. Ed. 2d at 507.
The balancing approach the Supreme Court employed in Knights
evaluates a search’s reasonableness, “[t]he touchstone of the Fourth
Amendment.” See id. at 118–19, 122 S. Ct. at 591, 151 L. Ed. 2d at 505.
(explaining how the Court tests for reasonableness); see also Samson,
547 U.S. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256 (explaining the
balancing test). The Supreme Court thus held that in its balancing of
these various considerations, no more than reasonable suspicion is
necessary to conduct a search of a probationer’s house. See Knights,
534 U.S. at 121, 122 S. Ct. at 592, 151 L. Ed. 2d at 506 (“We hold that
the balance of these considerations requires no more than reasonable
112
suspicion to conduct a search of this probationer’s house.”). Expressed
another way, the Supreme Court held that “law-enforcement searches of
probationers who have been informed of a search condition are
permissible upon individualized suspicion of criminal behavior
committed during the probationary period.” See id. at 122, 122 S. Ct. at
593, 151 L. Ed. 2d at 507 (Souter, J., concurring).
There can be no reasonable dispute that Knights controls the
determination whether the search of Short was constitutional under the
Fourth Amendment to the Federal Constitution. Short was, like Knights,
on probation, and he thus had a diminished expectation of privacy. See
id. at 119, 122 S. Ct. at 591, 151 L. Ed. 2d at 505. Like the government
in Knights, law enforcement in this case had a legitimate interest in
supervising Short, as it does all probationers. See id. at 120, 122 S. Ct.
at 592, 151 L. Ed. 2d at 506. Although the search in Knights was
supported by reasonable suspicion, the search of Short was supported by
probable cause, a higher level of suspicion. See id. at 122, 122 S. Ct. at
593, 151 L. Ed. 2d at 507. Given the relevant factual similarities and the
higher level of suspicion that supported the search in this case, this
search was incontestably reasonable and therefore permissible under the
Fourth Amendment.
Of course, the conclusion reached by the United States Supreme
Court under the Fourth Amendment does not resolve the question of the
constitutionality of the search under article I, section 8 of the Iowa
Constitution. As the majority notes, this court has resisted
reasonableness as the measure of the constitutionality of a search under
the Iowa Constitution. This, even though article I, section 8 mirrors the
Federal Constitution regarding unreasonable seizures and searches, and
this court’s own statement that “[t]here is of course little doubt that, in
113
light of the nearly identical language in article I, section 8 and the Fourth
Amendment, they were generally designed with the same scope, import,
and purpose.” See Ochoa, 792 N.W.2d at 267. This is also in spite of
this court in Cullison explicitly looking to the factual situation in that
case to determine the reasonableness of the extended search. Cullison,
173 N.W.2d at 539 (“We must look now to the factual situation here
involved to determine reasonableness of the extended search . . . .”
(Emphasis added.)). Completely diverging from this reasonableness
approach we utilized in Cullison and emphasizing this court’s traditional
“warrant preference rule,” we explained in Ochoa that the reasonableness
clause of the Iowa Constitution “cannot be used to override the Warrant
Clause” of the Iowa Constitution, lest the warrant clause be rendered
surplusage. 792 N.W.2d at 269, 291; see also id. at 289 (criticizing the
reasonableness test as “based not on the particular facts of a case but on
larger policies bolstered by the purported needs of law enforcement”).
The majority in this case wants to rely on Cullison and its analysis of the
Fourth Amendment for determining the reasonableness of a search, but
then disregards it in Ochoa and in this case. Instead, the majority
utilizes Cullison for a broad holding for the necessity of search warrants
under all circumstances when this really had nothing to do with the
holding of the case. While I acknowledge in deciding whether to follow
the Supreme Court’s lead down any constitutional path this court is not
bound to use the same analytic vehicle, there should at least be some
analytical consistency.
Even our own authority leaves open the clear possibility of an
exception to the warrant requirement under certain circumstances. See
Ochoa, 792 N.W.2d at 287 (positing one way of resolving the issue in the
case would be to accept a new exception to the warrant requirement).
114
We have repeatedly counseled that a warrantless search is
unconstitutional unless it falls within an exception to the warrant
requirement. See, e.g., State v. Lowe, 812 N.W.2d 554, 568 (Iowa 2012)
(explaining a warrantless search is unreasonable if it does not fall within
a recognized exception); Cline, 617 N.W.2d at 282 (“A warrantless search
. . . is per se unreasonable unless it falls within a recognized exception.”).
Our recognized exceptions to the warrant requirement include:
(1) searches founded on probable cause coupled with exigent
circumstances; (2) consent searches; (3) searches incident to arrest;
(4) plain view searches; and (5) community-caretaking searches. See
Kern, 831 N.W.2d at 172–73 (explaining the community-caretaking
exception); State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011) (mentioning
four exceptions to the warrant requirement); State v. Naujoks, 637
N.W.2d 101, 107 (Iowa 2001) (listing four “well-recognized exceptions to
the warrant requirement”). The majority has expressed the opinion that
the United States Supreme Court has “reconstructed,” “reengineered,”
and “reconfigured” our search and seizure law resulting in the erosion of
the protections afforded to individuals under the Fourth Amendment,
and expressed an unwillingness to consider expanding any such
exceptions under our Iowa Constitution. I think the failure to even
consider well-recognized jurisprudence providing exceptions to the
warrant requirement is wrong, and fails to uphold our duty to the
citizens of Iowa.
As previously noted, one recognized exception to the warrant
requirement under our constitution is consent. State v. Reinier, 628
N.W.2d 460, 464–65 (Iowa 2001). “Under this exception, the
reasonableness requirement of the Search and Seizure Clause is satisfied
when an individual consents to a search.” Baldon, 829 N.W.2d at 791.
115
The consent waives an individual’s rights under the Search and Seizure
Clause.33 Id.
In Baldon, we held a search provision contained in a parole
agreement did not constitute consent to search under the Iowa
Constitution. See id. at 803. But, it is important to understand the
reasoning we relied on in reaching this conclusion. First, we set aside
from consideration the cases dealing with probation agreements like
those we are dealing with here. See id. at 795. We said probation
agreements were of limited value in analyzing the consent issue because
probationers “maintain a vastly superior bargaining power than
parolees.” See id. We noted with approval that many courts find that
this vastly superior bargaining power of probationers “renders probation
agreements consensual.” See id.
Second, we noted that courts in other states had rejected consent
derived from parole agreements as a theory for upholding searches of
parolees because such a condition of parole was coercive and therefore
involuntary. See id. at 796. It was this lack of free will or “no ‘choice’ ” if
a person wanted to be released from prison, which determined our
decision on consent. See id. (quoting Samson, 547 U.S. at 863 n.4, 126
S. Ct. at 2206 n.4, 165 L. Ed. 2d at 267 n.4 (Stevens, J., dissenting)).
Finally, in Baldon, we surveyed the academic community and
noted it had also recognized weaknesses in treating consent searches as
voluntary searches in the context of a parole agreement. See id. at 797–
800. We, therefore, decided Baldon based on the vastly unequal
33Baldon
dealt with a consent provision in a parole agreement. See 829 N.W.2d
at 789. As properly noted by the majority in that case, “[t]he United States Supreme
Court has not addressed the specific question whether a parole agreement executed by
a parolee constitutes valid consent to support a waiver of Fourth Amendment rights.”
Id. at 792.
116
bargaining power of the parolee, the coercive atmosphere of parole, and
“no choice” concerning the search condition. We concluded “consent
under these circumstances [was] not real,” and we held Baldon’s
acceptance of the parole agreement did not constitute voluntary consent.
Id. at 802–03.
Of course, there is no similarity between the search of Baldon and
the search of Short. Here, we are dealing with a probation agreement. A
majority of the courts across the nation that have considered the issue
have concluded that “consent-search provisions in probation agreements
constitute a waiver of search-and-seizure rights.” Id. at 792–93 (citing
cases); see also, e.g., United States v. Barnett, 415 F.3d 690, 691 (7th
Cir. 2005) (“Constitutional rights like other rights can be waived,
provided that the waiver is knowing and intelligent, as it was here.”);
State v. Gawron, 736 P.2d 1295, 1297 (Idaho 1987) (upholding
warrantless search of probationer based on consent contained in
probation agreement); People v. Absher, 950 N.E.2d 659, 668 (Ill. 2011)
(upholding suspicionless search based on consent to a warrantless
search). In contrast, only a few jurisdictions that have considered the
issue have concluded probationers do not voluntarily consent to these
search provisions. See Baldon, 829 N.W.2d at 793–94 (citing cases); see
also, e.g., Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979) (holding a
provision in probation agreement did not establish consent, but stating
that “probationary status may be used as a factor to establish probable
cause”). Clearly, as these cases show, consent or waiver provisions in
probation agreements do not suffer from the same constitutional
infirmities as found in Baldon in the parole context. Again, the majority
avoids analyzing the consent issue, despite it being raised and argued by
the parties.
117
While a majority of courts have upheld the waiver provisions
against constitutional attack in the probation context, the analysis does
not end on consent alone. The surrounding circumstances of the search
itself must also be considered. In our leading parole search case of
Ochoa, a police officer searched a parolee’s motel room without any
particularized suspicion and without a warrant. 792 N.W.2d at 262.
Though we explicitly considered its possibility, we declined to create a
new exception to the warrant requirement in the parole context. See id.
at 287 (“We would, in essence, find that the facts of this case do not
establish one of the . . . exceptions to the warrant requirement.”).
Instead, we held warrantless, suspicionless searches of parolees invalid
“even under a reasonableness analysis.” Id. In doing so, we noted our
holding did not reach a few questions, including “whether individualized
suspicion amounting to less than probable cause may be sufficient in
some contexts to support a focused search” by general law enforcement.
Id. at 291. We also did not reach the question whether a warrant would
even be necessary to limit law enforcement’s authority to search
offenders. See id. In other words, Ochoa left open the question whether
a warrantless search of a parolee, supported by individualized suspicion,
may be constitutionally valid, even when no other recognized warrant
exception applied.
We set forth in Ochoa the primary considerations we used to
resolve the issue in that case, intending that those considerations guide
future cases. We traced events back to the English Crown’s use of
“general warrants,” which were “open-ended as to time, place, and
duration,” but warrants nonetheless. See id. at 269. In one Eighteenth
Century English case challenging a general warrant, an esteemed jurist
“rejected arguments that general warrants were necessary to advance the
118
ends of government.” Id. at 270. The judge quipped, “[I]f suspicion at
large should be a ground of search, . . . whose home would be safe?” Id.
(internal quotation marks omitted). This resistance to unrestrained,
suspicionless warrants, expressed in English caselaw, was “well-known
in the American colonies.” Id.
The experience in the American colonies was similar, but the
warrants issued under a different moniker. See id. at 271 (explaining
writs of assistance “allowed general searches for customs violations”).
“[W]rits of assistance” were broader than general warrants issued in
England. Id. The writs “were not returnable after execution,” continuing
instead “to authorize general searches during the life of the sovereign.”
Id. Officials to whom the writs were issued possessed unlimited
discretion. See id. Like their counterparts across the Atlantic, the
colonists strongly opposed the open-ended authority conferred by the
writs. See id.
We reasoned this historical background of the Fourth Amendment,
and “by implication” article I, section 8 of the Iowa Constitution,
indicated an intent to limit arbitrary searches and seizures. See id. at
272. In addition, a review of the circumstances surrounding the
adoption of the Federal and Iowa Constitutions confirmed the framers
sought to protect against the government abusing its power. See id. at
274. Despite ongoing current debate over whether the framers accepted
warrantless searches, the historical review suggested the framers did not
intend to allow law enforcement to perform “broad, unlimited”
warrantless searches. Id. at 273.
We also traced the development of the United States Supreme
Court’s Fourth Amendment jurisprudence. See id. at 275–83 (discussing
relevant precedents). After noting that exceptions for automobile
119
searches, searches incident to arrest, and exigent circumstances still
required a showing of probable cause, we described the Supreme Court’s
relaxation in other contexts of the probable-cause requirement. See id.
at 279. For instance, the Supreme Court has carved out an exception for
“special needs” not related to law enforcement when a warrant and
individualized suspicion are unnecessary. See id. (explaining the
development of the special-needs exception); see also, e.g., Nat’l Treasury
Emps. Union v. Von Raab, 489 U.S. 656, 666, 109 S. Ct. 1384, 1391,
103 L. Ed. 2d 685, 702 (1989) (holding the U.S. Customs Service’s drug-
testing program presented a special need justifying a departure from the
warrant and probable-cause requirements); Delaware v. Prouse, 440 U.S.
648, 654–55, 99 S. Ct. 1391, 1396–97, 59 L. Ed. 2d 660, 668 (1979) (“In
those situations in which the balance of interests precludes insistence
upon ‘some quantum of individualized suspicion,’ other safeguards are
generally relied upon to assure that the individual’s reasonable
expectation of privacy is not ‘subject to the discretion of the official in the
field . . . .’ ” (Footnotes omitted.) (quoting Camara, 387 U.S. at 532, 87
S. Ct. at 1733, 18 L. Ed. 2d at 537). In cases with criminal implications,
however, a view remained that some restraint on law enforcement’s
discretion was necessary. See Ochoa, 792 N.W.2d at 280 (describing
application of special-needs exception in cases with criminal
implications); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32,
44, 121 S. Ct. 447, 455, 148 L. Ed. 2d 333, 345 (2000) (holding
individualized suspicion necessary at narcotics checkpoints when
general interest was crime control). Whatever the implications of the
search, we reasoned protection against unrestrained government
intrusion depended on some form of individualized suspicion,
particularity, or “preestablished neutral criteria,” not on a warrant. See
120
Ochoa, 792 N.W.2d at 280; cf. Von Raab, 489 U.S. at 667, 109 S. Ct. at
1391, 103 L. Ed. 2d at 703 (explaining one primary purpose a warrant
serves is merely to advise a citizen that a search is legally authorized).
None of those limits on law enforcement was present in Ochoa.
Turning to the closely related United States Supreme Court cases,
we reviewed Griffin, Knights, and Samson. See Ochoa, 792 N.W.2d at
280–83 (describing the Supreme Court’s application of Fourth
Amendment principles to probationers and parolees). In discussing
Samson, in which the Supreme Court upheld a warrantless,
suspicionless search of a parolee, we focused primarily on the dissent
authored by Justice Stevens and joined by Justices Souter and Breyer.
See Ochoa, 792 N.W.2d at 282–83 (noting the “vigorous dissent”). Some
discussion of the dissent is therefore necessary.
In the Samson dissent, Justice Stevens inveighed against the
majority for upholding “an entirely suspicionless search unsupported by
any special need.” 547 U.S. at 860, 126 S. Ct. at 2204, 165 L. Ed. 2d at
264 (Stevens, J., dissenting). According to the three Justices, the
majority “jettisoned” individualized suspicion without substituting any
standards by which to “rein in officers and furnish a bulwark against the
arbitrary exercise of discretion.” Id. at 860–61, 126 S. Ct. at 2204, 165
L. Ed. 2d at 265. The dissent never hinted or suggested, however, that
the bulwark against arbitrary government action was under all
circumstances a search warrant. On the contrary, in all the dissenters’
indignation for the majority’s approach, even they would have dispensed
with a search warrant under the circumstances. See id. at 857, 126
S. Ct. at 2202, 165 L. Ed. 2d at 263 (arguing Knights and Griffin do not
support “suspicionless searches, conducted pursuant to a blanket grant
of discretion untethered by any procedural safeguards”). And the
121
framers of the Federal Constitution would have done so as well,
according to the three dissenters. See id. at 858, 126 S. Ct. at 2203, 165
L. Ed. 2d at 263 (“The suspicionless search is the very evil the Fourth
Amendment was intended to stamp out.”). The dissenters declared, “The
requirement of individualized suspicion, in all its iterations, is the shield
the Framers selected to guard against the evils of arbitrary action,
caprice, and harassment.” Id. at 866, 126 S. Ct. at 2207, 165 L. Ed. 2d
at 268. Law enforcement here had this individualized suspicion; in fact,
probable cause existed to support the search of Short’s residence. Even
the Samson dissenters, in all likelihood, would have upheld the search
under these circumstances. The majority chooses to ignore this analysis.
Ochoa’s survey did not end at the Samson dissent; however, our
rejection of warrantless, suspicionless searches of parolees flowed largely
from it and the historical narrative. We reasoned that law enforcement
having the power to search “a parolee at any time, for anything,
anywhere, including the home, without any suspicion of any kind”
resembled too closely the general warrant “despised” by our forebears.
See Ochoa, 792 N.W.2d at 287. Further, without some level of suspicion,
even if only reasonable suspicion, there was no limit on whether a search
could be conducted or on the search’s scope. See id. at 288. Our
constitution, we inferred from the federal experience, aimed to prohibit
“[s]uch unbridled discretion.” See id. After flaying the Samson majority’s
dubious reasoning, we concluded “a parolee may not be subjected to
broad, warrantless searches by a general law enforcement officer without
any particularized suspicion or limitations to the scope of the search.”
See id. at 291.
The takeaway from Ochoa was that the search of the parolee was
unconstitutional because there was no limitation whatsoever on the
122
police officer’s discretion. See id. (taking no position regarding whether
some “means other than a warrant” that limited law enforcement’s power
might pass constitutional muster). In Ochoa, the police officer lacked
even a hunch on which to base the search. See id. at 288. This sought-
after search power was “stunningly broad,” enabling law enforcement to
search any parolee’s “books, records, diaries, invoices, and intimate
surroundings” without limitation. See id. at 287–88. A power so broad
could not be reconciled with a constitutional limitation on governmental
search authority.
The search conducted in this case, in comparison to the searches
conducted in Ochoa and Baldon, is clearly distinguishable. The search in
this case “met the most stringent” Fourth Amendment search standard,
“probable cause.” See United States v. Flynn, 664 F.2d 1296, 1300 n.8
(5th Cir. 1982) (declining to consider whether airplanes should be given
the same constitutional treatment as cars because probable cause
existed). Moreover, the scope was narrow, enabling officers to search
only for evidence of the crime that Short was suspected of committing.
Had these circumstances been present in Ochoa, this court might have
joined with the nine Justices of the United States Supreme Court willing
to discard the search-warrant requirement in Samson. Our search of
cases involving parolees following Ochoa has indicated nothing to the
contrary. See Kern, 831 N.W.2d at 176 (concluding officers lacked
probable cause to perform exigent-circumstances search of parolee’s
home); Baldon, 829 N.W.2d at 789 (noting the state never argued that it
had even reasonable suspicion to search parolee).
As noted above, our constitutional independence frees this court
from applying the reasoning the United States Supreme Court used to
uphold the warrantless search of the probationer in Knights. That
123
reasoning, which rests on judgments about a probationer’s privacy
expectations and which was similarly applied to parolees in Samson, has
been criticized as “totally circular.” See 5 LaFave, Search and Seizure
§ 10.10(c), at 544 (explaining the circularity of the Court’s logic in
Knights); Samson, 547 U.S. at 857–58, 126 S. Ct. at 2202–03, 165
L. Ed. 2d at 263 (Stevens, J., dissenting) (chastising the majority’s
combination of “faulty syllogism” and “circular reasoning”). Even so, it is
undeniable that “by virtue of their status alone, probationers ‘ “do not
enjoy the absolute liberty to which every citizen is entitled.” ’ ” Samson,
547 U.S. at 848–49, 126 S. Ct. at 2197, 165 L. Ed. 2d at 257 (quoting
Knights, 534 U.S. at 119, 122 S. Ct. at 587, 151 L. Ed. 2d at 505). This
commonsense observation provides initial support for differential
treatment of probationers and law-abiding citizens under article I,
section 8 of the Iowa Constitution.
In Iowa, the lowest level probationers do not enjoy the liberty to
which law-abiding citizens are entitled. Iowa Code chapter 901B sets
forth a “corrections continuum.” See Iowa Code § 901B.1(1) (2013).
Probation, like parole, falls on “Level Two” of the corrections continuum,
see id. § 901B.1(1)(b), sandwiched between “Level One,” “[n]oncommunity
based corrections sanctions,” see id. § 901B.1(1)(a), and “Level Three,”
“[q]uasi-incarceration sanctions,” see id. § 901B.1(1)(c). Level two is
further divided into three levels of sanctions, all of which contemplate at
least supervision by corrections authorities. See id. § 901B.1(1)(b)(1)–(3).
Probationers subject to monitored sanctions “are monitored for
compliance” with “administrative supervision sanctions” by corrections
authorities. See id. § 901B.1(1)(b)(1). Supervised sanctions, the middle
level, are regular probation supervision and any conditions in the
probation agreement or court order. See id. § 901B.1(1)(b)(2). Finally,
124
intensive supervision sanctions, in addition to subjecting a probationer
to intense monitoring, provide for “electronic monitoring, day reporting,
day programming, live-out programs for persons on work release or who
have violated chapter 321J, and institutional work release under section
904.910.” Id. § 901B.1(1)(b)(3). As may readily be seen, this legislative
scheme envisions subjecting all probationers to governmental scrutiny to
which no ordinary citizen is subject, thus depriving even the lowest level
probationers of some degree of liberty.
Probation conditions may further abridge a probationer’s liberty.
Iowa Code section 907.6 grants broad authority for doing so:
Probationers are subject to the conditions established
by the judicial district department of correctional services
subject to the approval of the court, and any additional
reasonable conditions which the court or district department
may impose to promote rehabilitation of the defendant or
protection of the community. Conditions may include but
are not limited to adherence to regulations generally
applicable to persons released on parole and including
requiring unpaid community service as allowed pursuant to
section 907.13.
Among the parole regulations to which a probationer may be subject is
the requirement that the probationer “secure and maintain employment.”
Iowa Admin. Code r. 201—45.2(1)(c) (2013). Another regulation prohibits
a probationer from travelling outside his or her county of residence
without permission. See id. r. 201—45.2(1)(d). Before leaving the state,
a probationer must “secure advance written permission.” Id. A
probationer may not change residences without permission. Id. r. 201—
45.2(1)(e). A probationer may also be compelled to “cooperate in any
treatment/rehabilitation/monitoring program” specified by corrections
authorities. Id. r. 201—45.2(1)(i). These restrictions are strong and
significantly limit a probationer’s freedom, but as the statute makes
125
plain, these are additional conditions to which a probationer might be
subjected.
Iowa Code section 907.6 also authorizes courts to impose
probation conditions. Courts may not impose unreasonable or arbitrary
conditions. State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977).
Otherwise, courts’ authority under this provision is broad. State v. Valin,
724 N.W.2d 440, 445 (Iowa 2006). We have approved a court’s order
that a probationer spend six months in a residential treatment facility,
even when it meant displacing the probationer’s child. See State v. Ogle,
430 N.W.2d 382, 383 (Iowa 1988) (finding district court did not abuse its
discretion when imposing the probation condition). For its holding that a
court is within its discretion even to tell a probationer where and with
whom to live, Ogle exemplifies the impressive loss of freedom to which
probationers are subject. See id. Such deprivation is necessary to
promote the probationer’s rehabilitation and to protect the community.
See id. at 384 (upholding probation condition); see also Iowa Code
§ 907.6 (providing conditions may be imposed “to promote rehabilitation
of the defendant or protection of the community”).
Our caselaw, our statutes, and our regulations are evidence of a
fundamental notion in our law. They show that deeply embedded in our
system of law is the notion individuals sentenced for crimes, including
those who remain outside a prison’s walls, do not enjoy the same
complement of liberties as those of law-abiding citizens. Probationers,
unlike ordinary citizens, must comply with stringent conditions under
the watchful supervision of courts and corrections authorities. That our
law permits this treatment differential is undeniable. It follows from this
fundamental notion that probationers may be accorded different
126
treatment under some constitutional provisions, provided governmental
authority is adequately constrained.
Besides our jurisprudence on consent, one additional constraint
on governmental authority is individualized suspicion. As we said in
Cullison, “the basic purpose of [the search and seizure protection], as
recognized in countless decisions of this Court, is to safeguard the
privacy and security of individuals against arbitrary invasions by
government officials.” See 173 N.W.2d at 538 (emphasis added). As all
of the cases that have addressed searches of this nature confirm, it is
this arbitrary and suspicionless search that is the crucial distinction
between this case and the similar cases that have come before this court.
See Kern, 831 N.W.2d at 176 (concluding officers lacked probable cause);
Baldon, 829 N.W.2d at 789 (noting the State never argued that it had
individualized suspicion to search parolee); Ochoa, 792 N.W.2d at 288
(noting police officer performed search without any individualized
suspicion); Cullison, 173 N.W.2d at 540 (finding there was no “reasonable
or probable cause” to support search). That the officers here had
probable cause to search Lorenzen’s apartment negates a comparison
between the search performed in this case and “the despised general
warrant.” See Ochoa, 792 N.W.2d at 287. It was the general warrant’s
conferral of unrestrained discretion upon law enforcement that was an
impetus for the Fourth Amendment. See id.
The officers who searched Short operated under no such
unrestrained or arbitrary discretion. Rather, having established through
diligent investigation probable cause to believe Short committed a
burglary, law enforcement applied for a search warrant. While the
search warrant issued was ultimately determined to be invalid, the
probable-cause finding by the independent judicial officer was never
127
challenged. Not surprisingly, the stolen property was found at the
apartment.
The probable-cause requirement significantly restrains law
enforcement discretion. This standard is considerably more protective of
probationers’ rights than the reasonable-suspicion standard upon which
the search in Knights was upheld. See 534 U.S. at 122, 122 S. Ct. at
593, 151 L. Ed. 2d at 507 (upholding warrantless search of a probationer
supported by reasonable suspicion); see also Alabama v. White, 496 U.S.
325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990)
(explaining that “[r]easonable suspicion is a less demanding standard
than probable cause”); State v. Lewis, 675 N.W.2d 516, 525 (Iowa 2004)
(“The reasonable and articulable suspicion standard . . . is less than
probable cause.”). To satisfy the reasonable-suspicion requirement, an
officer need only have specific, articulable facts. See Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). In
Griffin, for instance, the United States Supreme Court found an
unauthenticated tip that a probationer “ ‘had or might have’ ” guns
adequate to supply reasonable suspicion. 483 U.S. at 878, 107 S. Ct. at
3171, 97 L. Ed. 2d at 720. The Supreme Court determined, however, the
same tip would not supply probable cause. See id.
In Iowa, “[t]he standard for probable cause is whether a person of
reasonable prudence would believe a crime has been committed or that
evidence of a crime might be located in the particular area to be
searched.” Naujoks, 637 N.W.2d at 108. Probable cause demands from
law enforcement facts suggesting that the items sought in the search are
linked to criminal activity and that those items will be found in the place
to be searched. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); see
also State v. Thomas, 540 N.W.2d 658, 662–63 (Iowa 1995) (“The facts
128
and information presented to establish this finding need not rise to the
level of absolute certainty, rather, it must supply sufficient facts to
constitute a fair probability that contraband or evidence will be found on
the person or in the place to be searched.”). Applying the probable cause
standard, we have invalidated searches on numerous occasions. See,
e.g., Kern, 831 N.W.2d at 176 (holding officers lacked probable cause to
search parolee’s home); Lewis, 675 N.W.2d at 525 (concluding officers
lacked probable cause to make a warrantless entry into a backyard);
State v. Myers, 570 N.W.2d 70, 75 (Iowa 1997) (concluding that “there
was not probable cause for issuance of the search warrant”); Thomas,
540 N.W.2d at 666 (holding no probable cause existed to search all
persons in a bar). The probable cause requirement’s insistence on
sufficient facts provides a strong protection against arbitrary searches by
law enforcement officers.
In addition, the concept of probable cause encompasses a number
of legal rules designed to limit officers’ discretion and therefore to protect
individuals’ rights. In Kern, for example, we rejected the argument an
individual’s invocation of constitutional rights could be used by officers
to establish probable cause. See 831 N.W.2d at 176. We also held a
“defensive posture by an occupant of a home in response to an intrusion
by police is not indicative of probable cause of a crime.” Id. These legal
rules further restrain officers’ discretion to perform searches.
A strict requirement that officers have individualized suspicion
before searching a probationer therefore alleviates our predominant
concern in Ochoa—that unrestrained general law enforcement could
intrude on a probationer’s privacy and rifle through the probationer’s
possessions anytime, anywhere, without a warrant, to find evidence of a
crime. See 732 N.W.2d at 287–88. Consistent with current Fourth
129
Amendment jurisprudence and our own precedents, I would require that
law enforcement must have at least individualized suspicion before law
enforcement officers can search a probationer or the residence.
Here, deputies established probable cause for the search by
applying for a search warrant. To do so, Deputy Bartolozzi carefully set
forth “facts, information, and circumstances,” including a police report
and officer statements describing the burglary. See Iowa Code § 808.3
(describing the necessary contents of an application for a search
warrant). The exhibits attached to the application described in detail the
items taken in the burglary that deputies expected to find in the
residence. Deputy Bartolozzi also described in detail the place to be
searched, going so far as to include a picture and description of the
residence, which was only later determined to be incorrect. An
independent review by a judicial officer determined there was probable
cause for the search and granted the search warrant based on Deputy
Bartolozzi’s scrupulous and earnest efforts. Though the search warrant
was later invalidated due to an incorrect address, probable cause was
undisputedly established, and the correct address was subject to the
search.
In addition to the finding of probable cause by an independent
judicial officer, there were other forms of restraint on law enforcement’s
discretion in this case. The greatest concern with granting officers the
authority to perform suspicionless searches of parolees in Ochoa was
that the authority was neither “minimal and highly-defined,” nor “closely
linked to an identified special need.” See 792 N.W.2d at 288. The search
executed by the deputies in this case, however, was narrow and defined.
Consistent with the warrant application, deputies searched for, and
found, televisions, jewelry, shoes, and other items they believed would be
130
found in the apartment based on their investigation. Unlike the search
in Ochoa, the search here was not “contrary to the common-sense notion
that ‘the scope of the search must be strictly tied to and justified by the
circumstances which rendered its initiation permissible.’ ” See 792
N.W.2d at 288 (quoting Terry, 392 U.S. at 19, 88 S. Ct. at 1878, 20
L. Ed. 2d at 904). Rather, the search of Short was consistent with that
notion. The limited scope of the search further controlled officer
discretion.
The officers’ knowledge Short was on probation also restrained law
enforcement discretion. This is not a situation like that of In re Tyrell J.,
in which the California Supreme Court upheld a police officer’s
warrantless search of a juvenile probationer, even though the officer was
unaware the juvenile was on probation. See 876 P.2d 519, 530 (Cal.
1994), overruled by In re Jaime P., 146 P.3d 965, 972 (Cal. 2006). In
requiring law enforcement to first ascertain whether an individual is on
probation, we avoid the possibility officers will search an individual “in
the bare hope” the individual is on probation. See Jaime P., 146 P.3d at
969. To adequately restrain law enforcement discretion, officers must
not only establish individualized suspicion, but also ascertain whether
the individual to be searched is on probation. See Ochoa, 792 N.W.2d at
291 (explaining one reason for rejecting the warrantless, suspicionless
search was that there was no available means of controlling arbitrary
searches). Both requirements are integral to the prevention of arbitrary
searches, and both requirements are present and have been met in this
case.
Finally, in his probation agreement, Short consented to the
warrantless search. At the time of the search, Short was on probation
for third-degree theft, an aggravated misdemeanor. See Iowa Code
131
§ 714.2(3) (“Theft in the third degree is an aggravated misdemeanor.”).
Short could have been sentenced to prison for up to two years. See id.
§ 903.1(2) (“When a person is convicted of an aggravated misdemeanor
. . . the maximum penalty shall be imprisonment not to exceed two
years.”). Rather than being sentenced to serve a prison sentence, Short
requested a suspended sentence and received a suspended sentence and
probation. As part of that bargain, Short voluntarily agreed to subject
himself to warrantless searches by law enforcement and corrections
authorities alike. The consent provision is not alone a basis to uphold
the search, but Short’s consent in the probation agreement should be a
critical factor in upholding the search in this case. The lack-of-
bargaining rationale we utilized in Baldon to conclude there was no
voluntary consent to the search, is not applicable in the present case.
We would not be alone in holding law enforcement may search
probationers without a warrant. Numerous state courts have upheld
warrantless searches of probationers and parolees, some supported by
individualized suspicion and some requiring probable cause. See State v.
Montgomery, 566 P.2d 1329, 1331 (Ariz. 1977) (upholding
constitutionality of a probation condition that permitted warrantless
searches by law enforcement); State v. Fields, 686 P.2d 1379, 1390 (Haw.
1984) (holding a warrantless search of a probationer must be supported
by reasonable suspicion); Gawron, 736 P.2d at 1297 (upholding a
warrantless search of a probationer); State v. Schlechty, 926 N.E.2d 1, 8
(Ind. 2010) (upholding warrantless search of a probationer supported by
reasonable suspicion); State v. Bennett, 200 P.3d 455, 463 (Kan. 2009)
(rejecting a suspicionless search of a probationer on grounds that the
search must “be based on a reasonable suspicion”); Parks v.
Commonwealth, 192 S.W.3d 318, 330 (Ky. 2006) (upholding a probation
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condition allowing law enforcement, on reasonable suspicion, to search a
probationer without a warrant); State v. Malone, 403 So. 2d 1234, 1239
(La. 1981) (holding a warrantless probation search need only be
supported by reasonable suspicion); State v. Burke, 766 P.2d 254, 257
(Mont. 1988) (holding permissible a warrantless search of a probationer
supported by reasonable cause); People v. Hale, 714 N.E.2d 861, 862,
865 (N.Y. 1999) (upholding search of a probationer’s home under a court-
ordered probation condition); State v. Schlosser, 202 N.W.2d 136, 139
(N.D. 1972) (upholding a warrantless search of a probationer); State v.
Turner, 297 S.W.3d 155, 169 (Tenn. 2009) (upholding under the
Tennessee Constitution a warrantless, suspicionless search of a parolee);
State v. Winterstein, 220 P.3d 1226, 1230 (Wash. 2009) (holding
probation officers must have probable cause before performing a
warrantless search). Though of diverse reasoning, these cases set forth
the principle that probationers and parolees may be searched upon a
different set of circumstances than law-abiding citizens. I would decide
this case according to those well-established principles.
Consent-to-search provisions in probation agreements advance the
interests of both offender rehabilitation and societal protection.
Probationers who have agreed to warrantless searches are more likely to
abide by the law:
The condition of probation that defendant consent to a
search of his person by a law enforcement officer without a
search warrant is a supervisorial procedure related to his
reformation and rehabilitation in light of the offense of which
he was convicted. With knowledge he may be subject to a
search by law enforcement officers at any time, he will be
less inclined to [violate the law].
People v. Kern, 264 Cal. App. 2d 962, 965 (Ct. App. 1968); accord People
v. Bravo, 738 P.2d 336, 342 (Cal. 1987); Himmage v. State, 496 P.2d 763,
133
765 (Nev. 1972); State v. Benton, 695 N.E.2d 757, 761–62 (Ohio 1998);
see also Hale, 714 N.E.2d at 865 (“[O]ne way to encourage [the
probationer to comply with the law] was to hold out the possibility that
he would be checked up on, and stood to be incarcerated if he betrayed
the terms of his negotiated probationary status.”). Of course, a
probationer who is more likely to abide by the law is also less likely to
harm others. See Owens v. Kelley, 681 F.2d 1362, 1367 (11th Cir. 1982)
(recognizing that probationary searches protect society “by the deterrent
effect of the condition”). Consent-to-search agreements also “enhanc[e]
the ability of law enforcement officers to detect any unlawful
. . . activities.” Id. “[I]f a defendant considers the conditions of probation
too harsh, he has the right to refuse probation and undergo the
sentence.” Gawron, 736 P.2d at 1297. Despite these obvious benefits,
the majority fails even to discuss these widely used consent-to-search
agreements as part of its analysis of this case and blindly follows the
Fourth Amendment precedent found in Cullison.
Based on all of the above considerations, I would hold the search
of Short and his residence was permissible under not only the Fourth
Amendment, but also under article I, section 8 of the Iowa Constitution.
Such a conclusion is consistent with our precedents and the national
consensus. After a diligent investigation, deputies established probable
cause to believe evidence of the burglary was in Leya Lorenzen’s
apartment, where Short was residing. Even knowing Short was on
probation and subject to the consent-to-search provision of his probation
agreement, law enforcement officers still established probable cause for
the search and executed the narrow search for evidence. Upon doing so,
they discovered the evidence they sought. Even without a warrant, the
consent provided by the probation agreement, combined with the
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existence of probable cause and the narrow scope of the search,
adequately restrained officer discretion.
The majority blindly elects to adhere to an absolute search warrant
requirement as set forth in Cullison without considering the changing
analysis of Fourth Amendment jurisprudence, and the jurisprudence
found in other nationwide authority. Such adherence to the past, based
on an underlying belief that the United States Supreme Court has eroded
and diluted the rights of ordinary citizens to the protections under the
Fourth Amendment, and that only a warrant will suffice, is unsound and
illogical. The search in this case was constitutionally permissible under
article I, section 8 of our Iowa Constitution and our precedents.
I would affirm.
Waterman, J., joins this dissent in part, and Mansfield, J., joins
this dissent.