State of Iowa v. Donald Joseph King

IN THE SUPREME COURT OF IOWA
No. 13–1061

Filed June 26, 2015

STATE OF IOWA,

Appellee,

vs.

DONALD JOSEPH KING,

Appellant.

Appeal from the Iowa District Court for Woodbury County,

James D. Scott, Judge.

A criminal defendant challenges the admission of evidence

collected by his parole officer in parolee defendant’s home under the Iowa

Constitution. AFFIRMED.

Rees Conrad Douglas, Sioux City, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant

Attorney General, Patrick A. Jennings, County Attorney, and Mark A.

Campbell, Assistant County Attorney, for appellee.
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CADY, Chief Justice.

In this appeal, we consider the constitutionality of a warrantless

search of the home of a parolee by a parole officer that uncovered

evidence used to prosecute and convict the parolee of the crime of

possession of a controlled substance as a habitual offender. We must

determine whether the search was unconstitutional or was justified by

the special needs of the State, based on a balancing of the governmental

interests served by the search against the privacy interest of the parolee

protected under article I, section 8 of the Iowa Constitution. On our

review, we find the search by the parole officer did not violate article I,

section 8 of the Iowa Constitution. We affirm the judgment and sentence

of the district court.

I. Background Facts and Proceedings.

Donald King was released on parole from a correctional institution

in Iowa on June 28, 2012. He was serving a sentence of incarceration at

the correctional institution after being convicted of the crimes of

possession of a controlled substance (methamphetamine), possession of

a controlled substance (methamphetamine) with intent to deliver, and

theft in the second degree. The parole officer assigned to supervise King

while on parole was Emmanuel Scarmon. As a condition to his release,

King was required to sign a “Parole Order and Agreement.” The

agreement contained numerous terms, including a consent-to-search

provision and an agreement to abstain from the use, purchase, and

possession of any drug.

King moved into an apartment in Sioux City and found

employment. In September and October 2012, however, he tested

positive for methamphetamine. He was placed into an inpatient drug-

treatment program and returned to his apartment upon completing the
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program on January 4, 2013. King was required to continue the drug-

treatment program on an outpatient basis, and he was required to find

employment. He was also required to wear an electronic monitoring

bracelet, which would allow his probation officer to track his movements.

On January 14, Scarmon met with King at the probation office.

During the meeting, King complained about the outpatient treatment

program and seemed to be losing his motivation to succeed at parole. He

expressed the notion that it might be easier to return to prison. In the

days following the meeting, the monitoring system signaled that King had

not left his apartment for two days. King was required to attend drug

treatment and to look for employment during this time. The monitoring

system also signaled that the bracelet might have been subjected to

tampering. Scarmon was concerned that King was on the verge of

another relapse into drugs or might abscond from parole.

On January 17, Scarmon and another parole officer, Todd Hruska,

made a home visit to check on King. When Scarmon and Hruska arrived

at the apartment, King was present and allowed them inside. King lived

alone. Scarmon checked the monitoring bracelet worn by King. It did

not show any signs of tampering. Scarmon then administered a breath

test to determine if King had been consuming alcoholic beverages. The

test did not detect the presence of any alcohol. King explained that he

had not left his apartment over the last few days because he had been

sick.

Scarmon had learned from experience that he could not always

trust parolees to provide honest answers to his questions. The search

provision in the parole agreement was a means for him to help verify if

the information provided to him by parolees was correct. He also utilized

home searches to make sure parolees were generally living in an
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environment consistent with the goal of rehabilitation when questions

and concerns would surface during the course of supervision. A search

was an effective means to discover signs of inappropriate activity that

could hamper the success sought by parole.

Scarmon decided he should check King’s bedroom for signs of any

activity detrimental to parole, including the presence of drugs or drug

paraphernalia. He was aware of King’s history of drug use, including

intravenous use of drugs and drug use while on parole. After Scarmon

informed King of his intention to search, King did not refuse, but instead

led the parole officers to his basement bedroom. Scarmon promptly

observed a sunglasses case located on the headboard of the bed. He

opened the case and discovered two small bags of marijuana and rolling

papers. Scarmon arrested King for violating his parole. Hruska placed a

call to the police.

King was subsequently charged with one count of possession of

marijuana, third offense, a class “D” felony, as a habitual offender. This

charge was based on the marijuana found in his bedroom by Scarmon.

King moved to suppress the marijuana as evidence in the prosecution.

He claimed the search of his bedroom and sunglasses case violated

article I, section 8 of the Iowa Constitution, and his consent to the search

under the parole agreement did not constitute a waiver of his

constitutional right. The State resisted the motion. It argued the search

was valid either as a “special needs” search or as a “consent” search

under the parole agreement. The district court overruled the motion,

ultimately ruling that the search was supported under the special-needs

doctrine.

At a bench trial, King was convicted of possession of a controlled

substance, marijuana, third offense, as a habitual offender. The district
 5

court sentenced King to a period of incarceration not to exceed fifteen

years. The sentence was suspended, and King was placed on probation

for two years. King appealed the judgment and sentence based on the

denial of his motion to suppress.

II. Standard of Review.

We review de novo claims based on the district court’s failure to

suppress evidence obtained in violation of the state constitution. State v.

Kern, 831 N.W.2d 149, 164 (Iowa 2013).

III. Analysis.

Article I, section 8 of the Iowa Constitution expresses “[t]he right of

the people to be secure . . . against unreasonable seizures and searches,”

and requires warrants to be particularized and issued only upon

probable cause. Iowa Const. art. I, § 8 (emphasis added). The federal

counterpart to Iowa’s right is found in the Fourth Amendment to the

United States Constitution. U.S. Const. amend. IV (“The right of the

people to be secure . . . against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable

cause . . . .”). The text of both provisions applies its protection to all

people, including people who may be detached totally from any suspicion

of criminal behavior, although the right is most often applied in the law

to people suspected of engaging in criminal behavior. 1 See United States

1The assertion of and claims regarding the right primarily arise in the criminal
context due to the sole means of remedy: the suppression of evidence in a prosecution
against an accused that was obtained in or because of an unconstitutional search or
seizure of the accused, their home, or things. Linkletter v. Walker, 381 U.S. 618, 634,
85 S. Ct. 1731, 1740, 14 L. Ed. 2d 601, 611 (1965) (“We also affirmatively found that
the exclusionary rule was . . . the only effective remedy for the protection of rights
under the Fourth Amendment . . . .”), abrogated on other grounds by Griffith v.
Kentucky, 479 U.S. 314, 320–22, 107 S. Ct. 708, 712–13, 93 L. Ed. 2d 649, 656–57
(1987); Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S. Ct. 407, 417, 9
L. Ed. 2d 441, 455 (1963) (holding evidence obtained at the exploitation of an illegal
search and seizure cannot be used against the person searched); see also State v. Cline,
 6

v. Verdugo-Urquidez, 494 U.S. 259, 265–66, 110 S. Ct. 1056, 1060–61,

108 L. Ed. 2d 222, 232–33 (1990) (examining the meaning of “the people”

in the context of Fourth Amendment protections); Katz v. United States,

389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)

(“[T]he Fourth Amendment protects people, not places.”). Overall, the

right protects people against warrantless searches, with carefully crafted

exceptions.

The declaration of the right in the context of its ownership by the

people projects a powerful statement. It identifies the importance of the

right to our founders and the prominence of the right in society. See

Boyd v. United States, 116 U.S. 616, 624–35, 6 S. Ct. 524, 529–35, 29

L. Ed. 746, 749–52 (1886) (describing in detail the development of the

right and its importance to the founders), abrogated on other grounds by

Warden v. Hayden, 387 U.S. 294, 301–02, 87 S. Ct. 1642, 1647, 18

L. Ed. 2d 782, 788–89 (1967). Yet, the thrust of the right does not speak

in absolutes, but reason. See State v. Naujoks, 637 N.W.2d 101, 107

(Iowa 2001) (“The essential purpose of the Fourth Amendment ‘is to

impose a standard of “reasonableness” upon the exercise of discretion by

government officials . . . .’ ” (quoting State v. Loyd, 530 N.W.2d 708, 711

(Iowa 1995))). This approach permits the reasonableness of searches to

adapt over time to new challenges given to the people and government

that were not contemplated at the time the provision was framed. It

allows the right to take on a new shape over time in response to new

understandings of those times when government is permitted to conduct

_________________________
617 N.W.2d 277, 291 (Iowa 2000) (“There is simply no meaningful remedy available to
one who has suffered an illegal search other than prohibiting the State from benefiting
from its constitutional violation.”), overruled on other grounds by State v. Turner, 630
N.W.2d 601, 606 n.2 (Iowa 2001).
 7

a reasonable search, including the search of people or places for

purposes primarily unrelated to the enforcement of criminal laws. See,

e.g., New Jersey v. T.L.O., 469 U.S. 325, 335–36, 105 S. Ct. 733, 739–40,

83 L. Ed. 2d 720, 730–31 (1985) (examining the reasonableness of

warrantless school searches). These future circumstances can both

expand the types of warrantless searches permitted by the right, just as

it could diminish the number or type of exceptions over time. See State

v. Cline, 617 N.W.2d 277, 283 (Iowa 2000) (declining to adopt a good-

faith exception to the exclusionary rule under the Iowa Constitution),

overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2

(Iowa 2001). Over approximately the last fifty years, new needs of the

government to conduct warrantless searches primarily unrelated to law

enforcement have challenged the shape of the right through what has

become known as the special-needs doctrine. See T.L.O., 469 U.S. at

332–33 & n.2, 340–41, 105 S. Ct. at 737–38 & n.2, 742, 83 L. Ed. 2d at

728–29 & n.2, 734.

A. Special-Needs Doctrine. The special-needs doctrine first

surfaced under our federal jurisprudence in Camara v. Municipal Court,

387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). In Camara, the

Court articulated a test to determine if and for what reason a warrant

would be needed for an administrative search. Id. at 532–33, 539–40, 87

S. Ct. at 1732–33, 1736, 18 L. Ed. 2d at 937–38, 941 (finding a warrant

was only necessary when entry of inspectors was refused in order to

inform the homeowner of the limits of the search, that the inspector was

authorized, and the necessity of the search to enforce the municipal

code). Camara was followed by T.L.O., 469 U.S. at 340–42 & n.7, 105

S. Ct. at 742–43 & n.7, 83 L. Ed. 2d at 733–35 & n.7, in which the Court

applied a special-needs test to determine if public school officials needed
 8

a warrant to conduct searches of school lockers. The doctrine derived its

name from the concurring opinion of Justice Blackmun, who stated:

“Only in those exceptional circumstances in which special needs, beyond

the normal need for law enforcement, make the warrant and probable-

cause requirement impracticable, is a court entitled to substitute its

balancing of interests for that of the Framers.” Id. at 351, 105 S. Ct. at

748, 83 L. Ed. 2d at 741 (Blackmun, J., concurring in judgment).

In Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d

709 (1987), the Court considered the special-needs doctrine in the

context of a probationary search. In doing so, the basic application of

the doctrine surfaced for the first time. See Griffin, 483 U.S. at 873, 107

S. Ct. at 3168, 97 L. Ed. 2d at 717. The Court acknowledged that “[a]

probationer’s home, like anyone else’s, is protected by the Fourth

Amendment’s requirement that searches be ‘reasonable.’ ” Id. On the

other hand, it recognized that “a State’s operation of a probation system

. . . presents ‘special needs’ beyond normal law enforcement that may

justify departures from the usual warrant and probable-cause

requirements.” Id. at 873–74, 107 S. Ct. at 3168, 97 L. Ed. 2d at 717.

The conditions placed on the liberty of probationers “are meant to assure

that the probation serves as a period of genuine rehabilitation and that

the community is not harmed by the probationer’s being at large,” which

requires and justifies the exercise of supervision to ensure the conditions

of probation are followed. Id. at 875, 107 S. Ct. at 3169, 97 L. Ed. 2d at

718. The Court ultimately held that requiring a warrant would remove

supervisory power from the probation officer and place it in the warrant

judge, interfere with quick responses to violations, and reduce the

deterrent effect that the searches would create. Id. at 876, 107 S. Ct. at

3170, 97 L. Ed. 2d at 719. Even the dissent found probation supervision
 9

fell within a special-needs category to justify the examination of the

reasonableness of probation-related searches and ultimately concluded

the threshold probable-cause requirement for a warrant should be

lowered because supervision advances rehabilitation “by allowing a

probation agent to intervene at the first sign of trouble.” Id. at 881–83,

107 S. Ct. at 3172–73, 97 L. Ed. 2d at 722–24 (Blackmun, J.,

dissenting). Justice Blackmun observed that the probation officer

monitors compliance with the conditions placed on the probationer’s

liberty and that a search of the home for violations may be necessary to

ensure that compliance. Id. at 883, 107 S. Ct. at 3173, 97 L. Ed. 2d at

723. He concluded the special-needs doctrine should not apply in

Griffin’s case because the search of his home was not a normal probation

search, but involved a tip from police to uncover evidence of a new

criminal violation; therefore, Griffin’s status as a probationer should not

justify the special exception. Id. at 885, 107 S. Ct. at 3174, 97 L. Ed. 2d

at 725.

In 1989, the Court extended the special-needs doctrine to cover

drug testing by railroads pursuant to federal regulations in Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103

L. Ed. 2d 639 (1989). These tests were permitted when specific rules

were violated or a supervisor had a reasonable suspicion based on

specific observations that the employee was under the influence of

alcohol. 2 Id. at 611, 109 S. Ct. at 1410, 103 L. Ed. 2d at 655–56 (citing

49 C.F.R. § 219.301(b) (1987)). The Court held the government had an

2Thoughperformed by the railroad companies, there were sufficient “indices of
the Government’s encouragement, endorsement, and participation” to implicate the
Fourth Amendment. Skinner, 489 U.S. at 615–16, 109 S. Ct. at 1412, 103 L. Ed. 2d at
658–59.
 10

interest in regulating railroad employee conduct to ensure safety for both

the traveling public and the employees, and this interest presented a

special need beyond normal law enforcement that might justify a

departure from the warrant requirement. Id. at 620–21, 109 S. Ct. at

1415, 103 L. Ed. 2d at 661–62. The Court found the standardized

nature of the tests, the minimal discretion of administering them, and

the practical difficulties of railroad supervisors obtaining a warrant from

a magistrate while evidence dissipates all weighed against the necessity

of requiring a warrant. Id. at 622–24, 109 S. Ct. at 1416–17, 103

L. Ed. 2d at 663–64. The Court noted that although other cases

indicated a warrantless search must be based on probable cause or at

least “ ‘some quantum of individualized suspicion,’ ” if the privacy

interests are minimal then the search might be reasonable even absent

such suspicion. Id. at 624, 109 S. Ct. at 1417, 103 L. Ed. 2d at 664

(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S. Ct.

3074, 3084, 49 L. Ed. 2d 1116, 1130 (1976)). The reasonable

expectations of privacy of employees were found to be diminished

because the employees worked in an industry that was highly regulated

to ensure the safety of everyone. Id. at 627, 109 S. Ct. at 1418, 103

L. Ed. 2d at 666. 3

3The railroad industry’s experience . . . persuasively shows, and common
sense confirms, that the customary dismissal sanction that threatens
employees who use drugs or alcohol while on duty cannot serve as an
effective deterrent unless violators know that they are likely to be
discovered. By ensuring that employees . . . know they will be tested
upon the occurrence of a triggering event, the timing of which no
employee can predict with certainty, the regulations significantly
increase the deterrent effect of the administrative penalties associated
with the prohibited conduct.
Skinner, 489 U.S. at 629–30, 109 S. Ct. at 1420, 103 L. Ed. 2d at 668.
 11

Safety was again the paramount concern of the Court in National

Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384,

103 L. Ed. 2d 685 (1989). The search in Von Raab involved testing by

the Customs Service for drug use among three groups of employees:

those directly involved in drug interdiction, those carrying firearms, and

those handling classified material. Id. at 660–61, 109 S. Ct. at 1388,

103 L. Ed. 2d at 699. The program was designed for deterrence and

could not be used in criminal prosecution without consent from the

tested employee, setting it outside the needs of normal law enforcement

and within the special-needs test. Id. at 666, 109 S. Ct. at 1391, 103

L. Ed. 2d at 702. The Court found the imposition of the warrant

requirement would bring normal or routine employment decisions to a

constitutional magnitude and could compromise the mission of the

Customs Service if warrants were needed without providing any

additional protection to personal privacy of the employees. 4 Id. at 666–

67, 109 S. Ct. at 1391, 103 L. Ed. 2d at 702–03. Further, the Court

found the government’s need to conduct the searches outweighed the

privacy interests of those who carried firearms and engaged in drug

interdiction, but the need did not clearly outweigh the privacy interests of
those handling classified information. Id. at 668, 678, 109 S. Ct. at

4A warrant serves primarily to advise the citizen that an intrusion is
authorized by law and limited in its permissible scope and to interpose a
neutral magistrate between the citizen and the law enforcement officer
“engaged in the often competitive enterprise of ferreting out crime.” But
in the present context, “the circumstances justifying toxicological testing
and the permissible limits of such intrusions are defined narrowly and
specifically . . . and doubtless are well known to covered employees.”
Von Raab, 489 U.S. at 667, 109 S. Ct. at 1391, 103 L. Ed. 2d at 703 (citation omitted)
(quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436,
440 (1948) (first quote); Skinner, 489 U.S. at 622, 109 S. Ct. at 1416, 103 L. Ed. 2d at
663) (second quote)).
 12

1392, 1397, 103 L. Ed. 2d at 704, 710. The Court reasoned that drug

use by agents whose job was to prevent drugs from entering the country

might create a conflict of interest that would interfere with the successful

execution of their duties and that those customarily using firearms could

not risk impaired perception or judgment caused by drug use. Id. at

670–71, 109 S. Ct. at 1393, 103 L. Ed. 2d at 705. However, the Court

found no evidence whether those with access to “classified” information

actually had access to sensitive information that might merit the

mandatory testing and could not find the overly broad category

reasonable. Id. at 678, 109 S. Ct. at 1397, 103 L. Ed. 2d at 710. The

dissent acknowledged that “whether a particular search has been

‘reasonable’ . . . depends largely upon the social necessity that prompts

the search.” Id. at 681–82, 109 S. Ct. at 1399, 103 L. Ed. 2d at 712–13

(Scalia, J., dissenting). However, it did not find sufficient social necessity

to require drug testing of Customs Service employees handling classified

material without evidence of a real drug use problem among them. Id.

The analysis the Court used in Vernonia School District 47J v.

Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), to

examine drug testing of students is very useful. First, the Court

considered the nature of the privacy interest intruded upon by the search

and the legitimacy of the privacy expectation. Id. at 654, 115 S. Ct. at

2391, 132 L. Ed. 2d at 575. The second factor considered was the

complained-of character of the intrusion. Id. at 658, 115 S. Ct. at 2393,

132 L. Ed. 2d at 577 (recognizing urinalysis intrudes on a traditionally

shielded private function). Finally, the court analyzed “the nature and

immediacy of the governmental concern at issue here, and the efficacy of

this means for meeting it.” Id. at 660, 115 S. Ct. at 2394, 132 L. Ed. 2d

at 579. Rather than a minimum level of interest, the Court found the
 13

governmental interest needed to be important enough to outweigh the

privacy interest and the extent of the intrusion. Id. at 661, 115 S. Ct. at

2394–95, 132 L. Ed. 2d at 579. The Court found the drug problem

among students in the community was severe enough to permit random

warrantless, suspicionless urinalysis of students who participated in

sports. Id. at 664–65, 115 S. Ct. at 2396, 132 L. Ed. 2d at 582. Justice

O’Connor dissented, suggesting that suspicion-based searches were not

impracticable in the particular context, rendering the blanket

suspicionless search unreasonable. Id. at 671, 679–81, 115 S. Ct. at

2399, 2403–04, 132 L. Ed. 2d at 586, 591–92 (O’Connor, J., dissenting)

(“Protection of privacy, not evenhandedness, was then and is now the

touchstone of the Fourth Amendment.”).

In Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137 L. Ed. 2d

513 (1997), the Supreme Court placed boundaries on the special-needs

exception as to warrantless, suspicionless searches. The State of Georgia

wanted to mandate drug testing for political candidates similar to the

requirements for railroad employees in Skinner and border patrol agents

in Von Raab. Chandler, 520 U.S. at 308–09, 117 S. Ct. at 1298, 137

L. Ed. 2d at 519–20. However, the Court found “[o]ur precedents

establish that the proffered special need . . . must be substantial—

important enough to override the individual’s acknowledged privacy

interest, sufficiently vital to suppress the Fourth Amendment’s normal

requirement of individualized suspicion.” Id. at 318, 117 S. Ct. at 1303,

137 L. Ed. 2d at 526. In order to find a special need, there must be an

indication of concrete dangers, not merely hypothetical ones, that justify

departing from the basic prescriptions of the Fourth Amendment. Id. at

318–19, 117 S. Ct. at 1303, 137 L. Ed. 2d at 526. “[W]here the risk to

public safety is substantial and real, . . . searches calibrated to the risk
 14

may rank as ‘reasonable.’ ” Id. at 323, 117 S. Ct. at 1305, 137 L. Ed. 2d

at 529.

Overall, the most pertinent federal precedent in the special-needs

area for the present case is Griffin. 5 The Griffin Court held the special-

needs exception applied to a search of a probationer’s home by a

probation officer, even when conducting the search for law enforcement

purposes rather than probationary purposes. 483 U.S. at 874–75, 107

S. Ct. at 3169, 97 L. Ed. 2d at 717–18 (majority opinion). The other

special-needs cases shape and modify how special-needs exceptions are

evaluated and applied. While several of the opinions permit

suspicionless searches, those are limited by the findings of minimal

privacy rights that are invaded, Skinner, 489 U.S. at 624, 109 S. Ct. at

1417, 103 L. Ed. 2d at 664, and the requirement that the governmental

need has to be important enough to override the privacy rights of the

individual, Chandler, 530 U.S. at 318, 117 S. Ct. at 1303, 137 L. Ed. 2d

at 526. Moreover, the only concerns that have made it through the

Court’s important-concern test are drugs in schools or relate to the

safety of the public and individuals. Acton, 515 U.S. at 664–65, 115

S. Ct. at 2396, 132 L. Ed. 2d at 582 (majority opinion); Von Raab, 489

U.S. at 668, 109 S. Ct. at 1392, 103 L. Ed. 2d at 704 (majority opinion);

5Although United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d
497 (2001), and Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250
(2006), both considered the constitutionality of searches of probationer homes, both did
so under a straight reasonableness analysis under the Fourth Amendment, not utilizing
a special-needs analysis similar to that done in Griffin. Knights, 534 U.S. at 117–18,
122 S. Ct. at 590–91, 151 L. Ed. 2d at 504–05 (deciding that warrantless searches of
probationers may be reasonable outside the special-needs context); see also Samson,
547 U.S. at 847, 126 S. Ct. 2196, 165 L. Ed. 2d at 256 (holding a condition of release
“can so diminish or eliminate a released prisoner’s reasonable expectation of privacy
that a suspicionless search by a law enforcement officer would not offend the Fourth
Amendment”). Thus, an examination of these cases would not apply to our special-
needs analysis.
 15

Skinner, 489 U.S. at 620–21, 109 S. Ct. at 1415, 103 L. Ed. 2d at 662;

see also Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 454–55, 110 S.

Ct. 2481, 2487–88, 110 L. Ed. 2d 412, 423 (1990) (upholding a

warrantless, suspicionless sobriety checkpoint using empirical data to

support its need and efficacy).

In 2003, we applied the special-needs doctrine in a case involving

the search of a school locker by school officials. State v. Jones, 666

N.W.2d 142–43 (Iowa 2003). In doing so, we borrowed from the federal

jurisprudence and adopted the three-factor test to determine if the

doctrine would support the warrantless search of the lockers. Id. at 146.

Under the analysis, we considered (1) the nature of the privacy interest at

stake, (2) the character of the intrusion, and (3) the nature and

immediacy of the government concern at stake and the ability of the

search to meet the concern. Id. We applied these factors to uphold a

warrantless random search of school lockers. Id. at 150.

We have not applied the special-needs doctrine beyond the search

of school lockers. We have evaluated the doctrine, however, in the

context of the search of the home of a parolee by police officers who

suspected the parolee had drugs inside the house. See generally Kern,

831 N.W.2d at 165–72. Yet, we did not assess the doctrine beyond the

specific circumstances of the case. See id. at 170–72. These

circumstances revealed police officers conducted the search for the

primary purpose of gathering and using evidence for a criminal

prosecution. Id. at 171. Thus, evaluating the case through the lens of

our search and seizure clause, we did not see the doctrine as a means to

enable law enforcement officers to carry out their duties in gathering

evidence of criminal activity. Id. at 170. Moreover, the circumstances of

the case did not demonstrate any reason that the warrant requirement of
 16

the right against unreasonable search and seizure would have frustrated

the purpose of the search. Id. at 172. Accordingly, we did not view the

doctrine as a means to excuse requiring law enforcement officers to

obtain a search warrant under the Iowa Constitution. Id.

Thirty-three years earlier, we addressed some of the underpinnings

of the special-needs doctrine in the context of the search of an apartment

of a parolee initiated by his parole officer, without making any specific

reference to the doctrine. State v. Cullison, 173 N.W.2d 533 (Iowa 1970).

In that case, we rejected the theories used to minimize the constitutional

protections of parolees and held that parolees maintain the same

safeguards afforded all people against warrantless searches involving

evidence of new crimes. Id. at 538. The search conducted in Cullison

began as a parole-related visit by a parole officer to determine the reason

the parolee failed to show up for work. Id. at 534. After leaving and then

returning to the apartment, the parole officer asked to search a locked

room of the apartment to investigate for any other parole violations. Id.

at 535. The parole officer “became suspicious” after the parolee objected

to his request to have the locked door opened and after the parolee told

him there was something in the room that he did not want him to see.

Id. The parole officer knew at the time that there had been recent

burglaries in the area, and he sought the assistance of a police officer to

assist in entering and searching the room. Id. We held the search

violated the Federal Search and Seizure Clause because it was not based

on probable cause. Id. at 539–40. The special-needs doctrine was not

fully developed at the time, and the facts of the case blurred any line

between a search by a parole officer to carry out the parole mission and a

search by law enforcement personnel for evidence of criminal activity.

See id. Nevertheless, we expressed no constitutional criticism of the
 17

search of the apartment by the parole officer until the officer became

suspicious of the contents of the locked room and obtained the

assistance of a police officer to pursue that suspicion. Id. at 538

(protecting the parolee’s constitutional safeguards only “as to a new and

separate crime”).

In State v. Ochoa, 792 N.W.2d 260 (Iowa 2010), we held that a

search by police of a motel room occupied by a parolee was unreasonable

under the search and seizure clause of the Iowa Constitution when based

solely on the parolee’s status. Ochoa, 792 N.W.2d at 289–91.

Notwithstanding, we acknowledged “[a] properly limited, nonarbitrary

warrantless search of the home by a parole officer might conceivably be

supported under the ‘special needs’ doctrine.” Id. at 288.

In State v. Short, 851 N.W.2d 474 (Iowa 2014), we were confronted

with “an investigatory search by law enforcement related to new crimes”

at the home of a probationer. Short, 851 N.W.2d at 477. We held “the

warrant requirement has full applicability to home searches of both

probationers and parolees by law enforcement.” Id. at 506. We declared

a search by law enforcement without an adequate warrant violated the

search and seizure clause of the Iowa Constitution, but acknowledged

the search involved “was not a probationary search.” Id. at 477, 505.

We again reserved the question whether searches by probation or parole

officers as a part of their ordinary duties would be permissible. Id. at

505. At the same time, we emphasized that the warrant requirement

cannot be overcome by notions of reasonableness detached from the

protections sought. Id. at 502.

B. Application. The facts at issue in this case bring us directly to

that point in time when we now fully confront whether the special-needs

doctrine of governmental concerns that justify a warrantless search
 18

includes the search of the home of a parolee by a parole officer for the

purpose of carrying out the mission of parole. We do this, not to

overturn or alter our prior opinions concerning searches and seizures as

related to parolees, but rather, to answer the question expressly left open

by those decisions. See id. at 505 (reserving the question of a search by

a parole officer as part of ordinary duties for another day); Kern, 831

N.W.2d at 170–71 (explaining any special-needs doctrine “would require

that the search by a parole officer be designed to fit the special needs of

parole” before concluding such a situation did not exist in that case);

State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013) (noting no evidence

was introduced about a need for the parole officer to search consistent

with the general mission of parole); Ochoa, 792 N.W.2d at 288 (noting

that “[a] properly limited, nonarbitrary warrantless search of the home by

a parole officer might conceivably be supported under the ‘special needs’

doctrine”); Cullison, 173 N.W.2d at 544 (Stuart, J., dissenting) (arguing

the majority did not answer the question of whether a parole-officer

search as part of ordinary duties fits within a warrantless-search

exception). We analyze the parole search issue by considering the three

factors identified in Jones.

1. Nature of the privacy interest. The first factor considers the

nature of the privacy intruded upon by the search. Jones, 666 N.W.2d at

146. In considering this factor, we start with the principle that parolees

have the same expectation of privacy in their homes as persons not

convicted of crimes and not on probation or parole. Cullison, 173 N.W.2d

at 537–38 (majority opinion); see also Ochoa, 792 N.W.2d at 290–91.

Yet, that equal footing recognized under our Iowa Constitution

predominantly exists in the context of the search and seizure by law

enforcement officers for evidence of crimes. See Kern, 831 N.W.2d at
 19

164–65, 170–71. Unlike people not on parole from a sentence of

incarceration resulting from a prior criminal conviction, parolees are

under the supervision of the government pursuant to a written parole

agreement. See Iowa Code § 906.1 (2013); Iowa Admin. Code r. 201—

45.1(2). These agreements require the parolee to submit to searches and

other governmental intrusions not permitted against people not on

parole. Iowa Admin. Code r. 201—45.2 (describing standard conditions

of parole and permitting additional special conditions to be imposed in

the agreement). See generally Baldon, 829 N.W.2d at 789–802 (tracing

the use and effect of consent-to-search clauses). If a term of the

agreement is not followed, the parole can be revoked and the parolee

returned to confinement to serve out the remainder of the sentence.

Iowa Admin Code r. 201—45.4. Thus, the expectation of privacy in a

home enjoyed by parolees can come at an expense not faced by people

not on parole. In other words, parolees can share the full expectation of

privacy afforded nonparolees only if the parolee chooses to violate the

parole agreement by refusing to permit a reasonable search and risk

paying the possible price of revocation of parole.

In Cullison, the parole agreement did not require the parolee to

permit the parole officer to search the apartment, nor did it give the

parolee notice that such a search might occur. 173 N.W.2d at 534

(“Teeters executed an instrument by which he agreed to conduct himself

honestly, obey the law, keep reasonable hours, refrain from excessive use

of intoxicants, and remain at all times in Montgomery County.”). Thus,

the parolee maintained the same expectation of privacy enjoyed by people

not out on parole and required the state to justify the warrantless search

on other grounds permitted under the constitution, not simply his status

as a parolee. See id. at 537–38. Because no such grounds existed and
 20

no other grounds supported the search, a warrant was necessary for the

search to be constitutional. Id. at 540.

In this case, King did not choose to maintain his privacy interest

by refusing access to his residence or the bedroom of his residence.

Instead, he complied with the terms of parole by allowing the parole

officers into his apartment and showing them to his bedroom to conduct

the search. Of course, these acts of compliance did not establish an

independent ground to search based on a waiver of his constitutional

rights. See Baldon, 829 N.W.2d at 802–03. No such independent

grounds existed. However, the acts of compliance did place the

government and King on different footing than the government and the

parolee in Cullison, in which the search was refused. See 173 N.W.2d at

535. The parole officers conducted, and King did not refuse, the search

pursuant to the terms of the parole agreement. Further, unlike Cullison,

the parole agreement served to diminish the expectation of privacy of the

parolee in relation to his parole officer by placing him on notice that such

a search might occur. Thus, we must decide if the interests of the

government under these circumstances are strong enough to prevail over

the legitimate privacy interests of a parolee who has failed to refuse or in

any way signal a lack of consent to a search the parolee had notice could

occur. This approach continues to protect the long-standing and

historical protections tied to a home under article I, section 8 of the Iowa

Constitution, but recognizes these protections can at times be altered by

the provisions parolees must comply with under parole agreements to

maintain their conditional freedom. Thus, a legitimate expectation of

privacy exists, even if altered by the parole agreement as it relates to the

parole officer, and our task is to determine whether the right has been

violated by considering the competing interests at stake. See State v.
 21

Lowe, 812 N.W.2d 554, 567–68 (Iowa 2012) (evaluating whether a

legitimate expectation of privacy existed before addressing if there had

been an unreasonable intrusion upon it). We therefore proceed to the

second factor to consider the character of the intrusion posed by the

policy behind the search. Jones, 666 N.W.2d at 148.

2. Character of the intrusion. The policy of a parolee search is

embedded in the supervisory relationship between the parole officer and

the parolee, as well as the historical purpose and goal of our system of

parole. See generally Morrissey v. Brewer, 408 U.S. 471, 478–79, 92

S. Ct. 2593, 2598–99, 33 L. Ed. 2d 484, 492–93 (1972). A review of this

history helps reveal the character of the intrusion in this case.

The theory of parole originated in Alexander Maconochie’s system

of supervising the British penal colony in Australia in the 1840s, where

prisoners earned marks and progressed through gradations of servitude

to earn their ticket-of-leave. 1 Neil P. Cohen, The Law of Probation and

Parole § 1:11, at 1-17 to -18 (2d ed. 1999) [hereinafter Cohen]. In the

1850s, Ireland adapted the idea into their penal system under the

leadership of Walter Crofton, who introduced the element of postrelease

supervision. Id. § 1:11, at 1-18; Joan Petersilia, Parole and Prisoner

Reentry in the United States, 26 Crime & Just. 479, 488 (1999)

[hereinafter Petersilia]. The parole system made it to America in 1876

when adopted for the juvenile reformatory system in New York, with the

addition of indeterminate sentencing. 6 1 Cohen § 1:12, at 1-19;

Petersilia, 26 Crime & Just. at 488. It spread quickly to other states, no

6The timing here is an important consideration in constitutional analysis. The
Iowa Constitution was passed in 1857. The Fourth Amendment to the United States
Constitution was ratified in 1791 and officially adopted in 1792. Even the concept of
parole would have been foreign to the statesmen who debated and created the search
and seizure protections we are striving to balance against the needs of society.
 22

longer restricted to juveniles. 1 Cohen § 1:12, at 1-19. Today, most

states and the federal government have statutes and regulations

providing for parole and methods of supervision and enforcement that

vary widely, making comparisons among and between jurisdictions of

limited utility. 7 See id. § 1:21, at 1-30; Petersilia, 26 Crime & Just. at

494–96.

Iowa first provided “for a system of reform and parole” in 1907 with

an act pertaining to “Indeterminate sentences and reformatory.” 1907

Iowa Acts ch. 192 (codified at Iowa Code §§ 5718-a4 to –a26 (1907

Supp.)). The Act converted one of the state penitentiaries into a

reformatory. Iowa Code § 5718-a4. The reformatory was available for all

female convicts and first-time male convicts between ages sixteen and

thirty who were not convicted of specified heinous crimes. Id. §§ 5718-

a5, -a27. The Act also established indeterminate sentences for the first

time for all crimes except murder and treason. Id. § 5718-a13. The

board of parole was also established and delegated the “power to

establish rules and regulations” for releasing persons to parole. Id.

§§ 5718-a14, -a18. It allowed

prisoners . . . to go upon parole outside of the penitentiary
buildings, . . . but to remain while on parole in the legal
custody of the wardens . . . and under the control of the said
board of parole and subject, at any time, to be taken back
and confined within the penitentiary.

7In the first case to reach the U.S. Supreme Court involving a parole question—
in the form of a separation-of-powers challenge—the Court deferred to a decision by the
state supreme court permitting delegation of judicial powers in the legislative creation of
indeterminate sentencing as permissible under the state constitution, further stating
that it did not present a question under the Federal Constitution. Dreyer v. Illinois, 187
U.S. 71, 83–84, 23 S. Ct. 28, 32, 47 L. Ed. 79, 85 (1902) (examining an Illinois parole
statute passed in 1899).
 23

Id. § 5718-a18. The board was further empowered to determine when

the parolee had sufficiently become a law-abiding citizen and when he or

she could be released from parole. Id. § 5718-a20.

Early on, Iowa courts treated parole as “a conditional pardon.”

Kirkpatrick v. Hollowell, 197 Iowa 927, 931, 196 N.W. 91, 92 (1923).

Parole was considered “a conditional and experimental release before

expiration of sentence.” Addis v. Applegate, 171 Iowa 150, 173, 154

N.W. 168, 176 (1915) (Salinger, J., concurring). In 1923, the

extraordinary session of the Iowa legislature amended the Code sections

on charitable, correctional, and penal institutions. 1923 Iowa Acts

Extraordinary Sess. (unpublished) ch. 55, §§ 481 to 506-a1 (Iowa 1924)

(codified at Iowa Code §§ 3782–3811 (1924)). Among other provisions,

probation as we now know it was created, but under the name “court

parole” (as opposed to the “board parole” dealing with the release of those

already in prison). See Iowa Code §§ 3786, 3788, 3800 (providing for

“parole before commitment” by the board of those not previously

convicted of a felony and for the court to suspend sentence and parole).

It is this probation or court parole—also called “bench parole”—that the

Iowa courts referred to as “a matter of grace, favor, and forgiveness.”

Pagano v. Bechly, 211 Iowa 1294, 1298, 232 N.W. 798, 799–800 (1930)

(comparing suspended sentence and parole to a pardon, within the

conditions and limitations provided by statute); see also Cole v. Holliday,

171 N.W.2d 603, 605 (Iowa 1969); State v. Boston, 234 Iowa 1047, 1051,

14 N.W.2d 676, 679 (1944).

In 1972, the United States Supreme Court had occasion to

examine the Iowa system of parole in Morrissey, in a challenge to Iowa’s

method of parole revocation. Part of the examination included a

description of parole officers and their role:
 24
The parole officers are part of the administrative
system designed to assist parolees and to offer them
guidance. The conditions of parole serve a dual purpose;
they prohibit, either absolutely or conditionally, behavior
that is deemed dangerous to the restoration of the individual
into normal society. And through the requirement of
reporting to the parole officer and seeking guidance and
permission before doing many things, the officer is provided
with information about the parole and an opportunity to
advise him. The combination puts the parole officer into the
position in which he can try to guide the parolee into
constructive development.

Morrissey, 408 U.S. at 478, 92 S. Ct. at 2599, 33 L. Ed. 2d at 492–93.

Just a few months later, we observed the similarities between probation

and parole—that although probation and parole take place at opposite

ends of a prison sentence, with probation resulting from judicial action

before prison and parole resulting from administrative action following

prison, “both follow conviction and imposition of sentence.” State v.

Wright, 202 N.W.2d 72, 76 (Iowa 1972).

The Iowa legislature revised the criminal code in 1976, effective

January 1, 1978. 1976 Iowa Acts ch. 1245 (codified in scattered sections

of Iowa Code (1979)); id. ch. 1245, ch. 4, § 529. One provision replaced

the legal custody of parolees with departmental supervision of parolees.

Prior to the revision, Iowa Code section 247.9 provided that “[a]ll paroled

prisoners shall remain, while on parole, in the legal custody of the

warden or superintendent and under the control of the chief parole

officer.” Iowa Code § 247.9 (1977). The new statute provided that

“[e]very person while on parole shall be under the supervision of the

department of social services, which shall prescribe regulations for

governing persons on parole.” Iowa Code § 906.5 (1979).

In 1983, the Iowa Department of Social Services was reorganized,

establishing the Iowa Department of Corrections. Iowa Code ch. 217A

(1985)). At that time, the parole functions were transferred to the newly
 25

created department of corrections. Id. § 906.1. Today, parole officers are

still part of the department of corrections, working out of the local

judicial district department of correctional services. Iowa Code § 906.2

(2013). 8

When granting parole, the board of parole does not grant an

inmate “the absolute liberty to which every citizen is entitled, but only

. . . the conditional liberty properly dependent on observance of special

parole restrictions.” Morrissey, 408 U.S. at 480, 92 S. Ct. at 2600, 33

L. Ed. 2d at 494. “Conditional” liberty means that in order to remain in

the community instead of being re-incarcerated, the parolee must comply

with both standard conditions of parole required of all parolees, and

special conditions imposed depending on the needs of that particular

case. Iowa Admin. Code r. 201—45.2(1) (listing standard conditions); id.

r. 201—45.2(2) (providing for the imposition of parolee-specific special

conditions). A parole officer has the obligation to monitor the compliance

with those conditions of each of the persons under supervision. See id.

r. 201—45.4, .6 (requiring parole officer recommend when to revoke,

continue, or discharge parole). Today, our legislature has statutorily

defined parole as

the release of a person who has been committed to the
custody of the director of the Iowa department of corrections
by reason of the person’s commission of a public offense,
which release occurs prior to the expiration of the person’s
term, is subject to supervision by the district department of

8The board of parole is independent from the department of corrections, with
members appointed by the Governor and confirmed by the senate. Iowa Code § 904A.3.
However, the majority of members of the board are expected to be “knowledgeable in
correctional procedures and issues.” Id. § 904A.2. The board has a duty to create and
review any parole programs and procedures. Id. § 904A.4(3); id. § 906.3. However, the
board of corrections has rulemaking power over the administration of the parole
system. Id. § 904.105(6)–(7); id. § 906.5(4).
 26
correctional services, and is on conditions imposed by the
district department.

Iowa Code § 906.1.
The supervision component of parole necessarily involves intrusion

by government into the lives of parolees as they assimilate back into

society. See Griffin, 483 U.S. at 874–75, 107 S. Ct. at 3169, 97 L. Ed. 2d

at 718. But, the intrusions based on the policy of the purpose of parole,

rehabilitation of the parolees and maintaining public safety, are

unrelated to the purpose of gathering evidence of criminal behavior that

has already occurred for the purpose of enforcing laws through a

criminal prosecution. See Kern, 831 N.W.2d at 170–72; Ochoa, 792

N.W.2d at 286. The parole officer needs to be able to evaluate the

parolee’s compliance with all the conditions of the parole agreement to

determine if any assistance is needed, to evaluate if the parolee is ready

for discharge, or to revoke parole if necessary. Iowa Code §§ 906.2, .15;

Iowa Admin. Code r. 201—45.4. While criminal prosecutions can result

from parolee conduct subject to conditions of parole that is also criminal

conduct, the intrusions are often considered a necessary part of the

supervision and an essential ingredient to the success of parole. 1

Cohen, § 17:7, at 17-11 to -12. Without reasonable intrusions, the goal

and purpose of parole would be difficult, if not impossible, to accomplish.

See id. §§ 17:16–:17, at 17-27 to -29 (discussing the exclusionary rule

and the necessity of searches in relation to parole revocation).

The character of the particular intrusion at issue in this case, of

course, is the search of the residence of a parolee by a parole officer. Yet,

the intrusion in this case was much different than we confronted in

Cullison. See 173 N.W.2d at 534–35. In Cullison, the parolee not only

refused to permit his parole officer to search the locked room, but the
 27

warrantless search that followed was conducted with the aid of a law

enforcement officer and pursued with a suspicion that the room might

contain evidence of a new and independent crime. Id. at 535. The initial

intrusion by the parole officer in the apartment, however, was consistent

with the mission of parole and was not part of the analysis that found

the search of the home to be unconstitutional. See id. at 538. Instead,

the intrusion only ran afoul of the Iowa Constitution when the search

became intertwined with the state’s interest in law enforcement after the

parolee placed limits on the search area. See id. at 539–40. Thus,

Cullison did not address the constitutionality of all parole searches, and

its holding does not preclude all parole searches. See id. at 544 (Stuart,

J., dissenting). Rather, we confined our analysis in Cullison to

nonconsensual warrantless parole searches of “the parolee’s living

quarters in connection with the prosecution of a new and independent

criminal action.” Id. at 535 (majority opinion). The question we

answered was “what constitutional rights, if any, an individual

surrenders upon conditional release from one of our state penal

institutions.” Id. We did not address how the answer to that question

would affect a parole search, pursuant to a parole agreement, that was

divorced from the objectives of law enforcement and confined to the

special needs of parole officers in supervising parolees. See id. at 537–

38.

A distinction exists between searches to pursue the purposes of

law enforcement and those to pursue the purposes of carrying out the

mission of parole. See Kern, 831 N.W.2d at 170. The special needs of

parole are divorced from the general interests of the state in law

enforcement. See Ferguson v. City of Charleston, 532 U.S. 67, 79–80,

121 S. Ct. 1281, 1289–90, 149 L. Ed. 2d 205, 217 (2001) (requiring the
 28

nature of the special need be “divorced from the State’s general interest

in law enforcement”). Thus, the special role of parole officers in carrying

out the objectives and policy of parole becomes critical to the analysis.

See Samson v. California, 547 U.S. 843, 858–59, 126 S. Ct. 2193, 2203,

165 L. Ed. 2d 250, 263–64 (2006) (Stevens, J., dissenting). As identified

in Griffin, the special role of parole and probation is derived from the

“ongoing supervisory relationship—and one that is not, or at least not

entirely, adversarial—between the object of the search and the

decisionmaker” not present in other searches. 483 U.S. at 879, 107

S. Ct. at 3171, 97 L. Ed. 2d at 721. Indeed, not all objects of a parole

search are subject to criminal investigation outside of parole, including

conditions limiting alcohol consumption and persons with whom the

parolee may associate. Yet, for the special-needs analysis to apply, the

reasons for the search must be the interest in supervising the

reintegration of parolees into society, “not, or at least not principally, the

general law enforcement goal of detecting crime.” Samson, 547 U.S. at

859, 126 S. Ct. at 2203, 165 L. Ed. 2d at 264.

At the same time, an intrusion permissible under article I, section

8 must be narrowly defined. The purpose of search and seizure clauses

“is to safeguard the privacy and security of individuals against arbitrary

invasions by governmental officials,” Camara, 387 U.S. at 528, 87 S. Ct.

at 1730, 18 L. Ed. 2d at 935; and the traditional exceptions to the

warrant requirement are “specifically established and well-delineated,”

Katz, 389 U.S. at 357, 88 S. Ct. at 514, 19 L. Ed. 2d at 585, to maintain

safeguards when a warrant is impractical. See Ochoa, 792 N.W.2d at

278–79. Thus, an exception permitting special-needs parole searches

must contain measures to protect against unfettered discretion by the

state. Samson, 547 U.S. at 860, 126 S. Ct. at 2204, 165 L. Ed. 2d at
 29

264. For parole searches to meet this requirement, the intrusion must

serve at every point the mission and policy of parole as it applies to that

particular parolee, not general law enforcement.

The character of the intrusion is also shaped by the scope of the

search. The scope is limited to only those actions reasonable to ensure

the parolee’s compliance with the parole conditions with the goal of

rehabilitation. If the scope of the parole search becomes too broad, it can

take on the form of a search that serves the goals beyond the mission of

parole. See Kern, 831 N.W.2d at 170 (describing when police presence

shifts the purpose of the search beyond parole goals). Additionally,

intrusions into certain areas within the house or containers within the

home can heighten the privacy interest at stake. See United States v.

Ross, 456 U.S. 798, 822–23, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572,

592 (1982) (“[T]he Fourth Amendment provides protection to the owner of

every container that conceals its contents from plain view. But the

protection afforded by the Amendment varies in different settings.”

(Citation omitted.)). Therefore, the parole officer must limit the scope of

the search to only those areas necessary to ensure compliance with the

specific parole conditions the parole officer has a reasonable suspicion

have been violated and only to the extent a reasonable person would find

appropriate under the facts supporting that suspicion.

“[R]easonable suspicion is based on an objective standard: whether

the facts available to the officer at the time of the stop would lead a

reasonable person to believe that the action taken by the officer was

appropriate.” State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). This

determination is made “in light of the totality of the circumstances

confronting the officer,” including specific, articulable facts and the

rational inferences drawn from them. State v. Tague, 676 N.W.2d 197,
 30

204 (Iowa 2004). The standard is more than a hunch or unparticularized

suspicion, but less demanding than showing probable cause. State v.

Walshire, 634 N.W.2d 625, 626 (Iowa 2001); Kinkead, 570 N.W.2d at

100. We have upheld the reasonable-suspicion standard in vehicular

stop contexts for investigatory purposes, while requiring probable cause

to effect a seizure. State v. Tyler, 830 N.W.2d 288, 293, 298 (Iowa 2013).

“[R]easonable cause may exist to investigate conduct which is subject to

a legitimate explanation and turns out to be wholly lawful.” State v.

Richardson, 501 N.W.2d 495, 497 (Iowa 1993).

In this case, the search extended into the bedroom of the parolee

and included the search of a sunglasses case located on the headboard

of the bed. Thus, the search extended beyond a visual inspection for

drugs in plain view and into a more personal space of the parolee beyond

the area of the initial encounter. See generally State v. Oliver, 341

N.W.2d 744, 745–47 (Iowa 1983) (explaining the requirements to

establish a plain view exception to search and seizure law). This

intrusion made the search more invasive, but not necessarily detached

from the policy behind the search. The concerns that prompt the parole

search in general need to be broad enough to achieve the purpose of

parole, but narrow enough that the search not be arbitrary or depart

from the parole mission. A parolee knows his home is subject to search

under the parole agreement, and the policy prompting the need to search

could be jeopardized if the search area is too constrained. Furthermore,

King lived alone. The search did not intrude upon the privacy interests

of other persons.

As to the search of the sunglasses case, it is commonly

documented and understood that drugs and their paraphernalia are

often hidden in small, everyday containers. See State v. Finch, No. 02–
 31

1148, 2003 WL 22828750, at *2 (Iowa Ct. App. Nov. 26, 2003) (Altoid

tin); see also State v. Lowe, 812 N.W.2d 554, 564, (Iowa 2012) (fruit can);

State v. Maxwell, 743 N.W.2d 185, 189 (Iowa 2008) (cigarette pack); State

v. Eubanks, 355 N.W.2d 57, 58 (Iowa 1984) (makeup case); State v.

Meksavanh, No. 12–1878, 2014 WL 3749356, at *2 (Iowa Ct. App.

July 30, 2014) (lamp shade, dresser drawer, purse, floor of backseat of

car); State v. Simmons, No. 12–0567, 2013 WL 1750986, at *1 (Iowa Ct.

App. Apr. 24, 2013) (cover of a speaker); State v. Hoosman, No. 09–0067,

2010 WL 1579428, at *2 (Iowa Ct. App. Apr. 21, 2010) (fake can of soda,

CD case, ball of lint in laundry room); State v. Palmer, No. 03–1824, 2006

WL 126439, at *1 (Iowa Ct. App. Jan. 19, 2006) (flashlight). We have

established a principle that there must be a nexus between the place

searched and the object of the search. State v. Hoskins, 711 N.W.2d 720,

728 (Iowa 2006). This nexus includes “the nature of the items involved,

the extent of the defendant’s opportunity for concealment, and the

normal inferences as to where the defendant would be likely to conceal

the items.” State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982). Thus,

Scarmon’s search for evidence of drug-addiction relapse needed to be

limited to those containers and areas that normal inferences, based on

his past experience and knowledge of King, would lead him to believe

King would conceal drugs or paraphernalia. A sunglasses case fits

within the parameters to conceal methamphetamine and its

paraphernalia, the suspected relapse drug. Additionally, the container

was in plain view within the bedroom. More private areas within the

bedroom were not entered.

The policy behind parole searches cannot be achieved if the search

is so constrained that it would exclude the ability to search those

common areas where the object of the search would be most commonly
 32

found. This approach is consistent with the nexus requirement

applicable to all searches and serves to both constrain the scope of the

search and make the search broad enough to serve its goal. See

Hoskins, 711 N.W.2d at 728 (permitting logical inferences in nexus

consideration).

Overall, the character of the intrusion is modified when the parolee

does not refuse the search. 9 It is also modified when the discretion to

search is narrowed by the mission of parole and divorced from the

general law enforcement objectives. The search also takes on a less

intrusive character when it is confined to areas directly related to the

concern that supported the decision to search. The policy of a parole

search is separate from policies that promote the discovery of evidence to

use in a new and independent prosecution. Accordingly, we proceed to

consider the nature and immediacy of the concerns of the parole officer

that led to the search of King’s apartment.

3. Nature of governmental concerns and efficacy of search

policy. The general governmental concern at stake in this case involves

compliance by parolees with the conditions of their parole to prevent

recidivism. The policies of rehabilitating parolees and maintaining public

safety are both enforced through the mechanism of the supervision of the

parolee and the conditions imposed for the duration of parole. The board

of parole is instructed to release those persons who can be released

“without detriment to the community or to the person.” Iowa Code

§ 906.4(1). The parole officer is then tasked with the responsibility to

“keep informed of each person’s conduct and condition” to encourage

9Because the issue was not raised here, we do not determine the effect a refusal

by the parolee would have had on the search.
 33

rehabilitation and ensure public safety. Id. § 906.2; see also 1 Cohen

§ 17:7, at 17-10 to -11 (“The . . . parole officer has the primary

responsibility for supervision of a parolee’s . . . rehabilitative progress.

This caseworker . . . owes a responsibility to the public to ensure that

[those] who pose a threat to public safety are not permitted to remain

free . . . .”). Ultimately, the parole officer’s concern is the prevention of

future crime through rehabilitation and close supervision until that

rehabilitation is achieved. See 1 Cohen § 1:20, at 1-29, § 17:1, at 17-2.

The legislature expressly directed parole officers to “use all suitable

methods to aid and encourage the person to bring about improvement in

the person’s conduct or condition.” Iowa Code § 906.2.

The specific nature of the concerns of government that gave rise to

the search in this case related to a reasonable suspicion of drug use and

loss of interest in completing parole by the parolee. These concerns

surfaced from information obtained by the parole officer in his

supervisory role. No law enforcement officers or law enforcement

information was involved. The concerns related to the purposes and

objectives of King’s parole, not the enforcement of criminal laws. Even

though the parole officer suspected parole violations that included

unlawful activity, the concern that motivated the search was not

formulated or acted upon by the parole officer for the primary purpose of

enforcing the law.

The absence of an adversarial relationship between the parolee and

the parole officer in this case is important in identifying the concerns of

government. Only the parole officer, through the ongoing relationship

with the parolee, possesses the knowledge of both the conditions

imposed on a particular parolee and the conduct signaling a violation

that rises to the level of a reasonable suspicion of parole violation that
 34

needs to be pursued by the parole officer. If such conduct has risen to a

level that involves law enforcement officials who approach the parole

officer with suspicions of new criminal wrongdoing they want to pursue,

the matter has moved beyond the scope of the government’s concern of

parole compliance and into the realm of law enforcement. This factor

distinguishes this case from our prior parolee search cases that involved,

in varying degrees, law enforcement officers and law enforcement

purposes. See Kern, 831 N.W.2d at 157 (involving law enforcement

officers searching with suspicion but no warrant with the approval of a

parole officer who arrived part way through the search); Ochoa, 792

N.W.2d at 262–63 (involving police officer conducting a suspicionless,

warrantless search); Cullison, 173 N.W.2d at 535 (involving parole and

police officer searching with suspicion of a specific new criminal activity).

This factor does not transform the case into those involving a detached

magistrate, but it helps reduce the evil sought to be eliminated by the

search and seizure clause when the decision to search is made by a law

enforcement officer. See Griffin, 483 U.S. at 876, 107 S. Ct. at 3170, 97

L. Ed. 2d at 719 (“Although a probation officer is not an impartial

magistrate, neither is he the police officer . . . .”). There was no evidence

that the parole officer in this case was motivated by the goals and

purposes of law enforcement.

The specific, articulable concerns of the parole officer giving rise to

a reasonable suspicion to support a search derived from information

associated with the supervision of parolees. The concerns involved

specific behaviors and comments of the parolee, an evaluation of the

likelihood of violations of particular parole agreement conditions, and a

triggering event in the form of the monitoring bracelet alert. This factor,

requiring a particularized concern with specific articulable facts and
 35

reasonable suspicion to support the search, helps prevent arbitrary

discretionary searches under the search and seizure clause.

The immediacy of the government concerns were derived from the

general mission of parole supervision. The supervision of parolees

requires intervention “at the first sign of trouble” and “at an earlier stage

of suspicion.” Id. at 883, 107 S. Ct. at 3173, 97 L. Ed. 2d at 723

(Blackmun, J., dissenting). “[R]esearch suggests that more intensive

supervision can reduce recidivism.” Id. at 875, 107 S. Ct. at 3169, 97

L. Ed. 2d at 718 (majority opinion). Moreover, delays in searching can

reduce the deterrent effect provided by prompt searches. Id. at 876, 107

S. Ct. at 3170, 97 L. Ed. 2d at 719.

We recognize there are other less intrusive means for probation

officers to discover whether or not a parolee is violating a provision in the

parole agreement prohibiting drug use. The collection of a substance

from the body for drug testing is one such means, as the facts of this

case disclose. However, the supervision of a parolee requires latitude

and real-time responses. A response geared to the discovery of drugs in

a house can present a more comprehensive view of the problems that

need to be addressed by a parolee for the parole officer. A different

picture is presented for the parole officer by the discovery of drugs in the

home of a parolee than from the detection of drugs in the blood or urine

of a parolee, including a means to gauge the severity of the relapse.

Thus, a search can provide a better vehicle than drug testing to meet the

legitimate concerns of government.

The balance of the three factors from Jones is critical to our finding

a special need to allow narrowly tailored parolee searches. See 666

N.W.2d at 145–46. Overall,
 36
the question in every case must be whether the balance of
legitimate expectations of privacy, on the one hand, and the
State’s interests in conducting the relevant search, on the
other, justifies dispensing with the warrant and probable-
cause requirements that are otherwise dictated by the
[Search and Seizure Clause].

Samson, 547 U.S. at 864, 126 S. Ct. at 2206–07, 165 L. Ed. 2d at 267.

On balance, we conclude parole officers have a special need to search the

home of parolees as authorized by a parole agreement and not refused by

the parolee when done to promote the goals of parole, divorced from the

goals of law enforcement, supported by reasonable suspicion based on

knowledge arising out of the supervision of parole, and limited to only

those areas necessary for the parole officer to address the specific

conditions of parole reasonably suspected to have been violated. The

facts of this case satisfy this narrowly tailored standard. We do not

address the application of this standard to probationers or how the scope

of the search might be affected by the expectations of privacy held by

others living in the same home. Accordingly, we affirm the judgment of

the district court.

IV. Conclusion.

We adopt a special-needs exception that authorizes parole officers

to search the home of a parolee without a warrant for purposes of parole

supervision. We affirm the judgment and sentence of the district court.

AFFIRMED.

Waterman, Mansfield, and Zager, JJ., join this opinion. Mansfield,

J., files a separate concurring opinion in which Waterman, J., joins.

Appel, J., files a dissenting opinion in which Wiggins and Hecht, JJ.,

join.
 37

#13–1061, State v. King

MANSFIELD, Justice (concurring specially).

I join the court’s opinion. While I would also sustain the search for

the reasons set forth in my dissent in State v. Baldon, 829 N.W.2d 785,

835–47 (Iowa 2013) (Mansfield, J., dissenting), I realize the court has

taken a different view. I concur in the court’s well-reasoned analysis and

application of the special-needs doctrine.

Waterman, J., joins this special concurrence.
 38

#13–1061, State v. King

APPEL, Justice (dissenting).

I respectfully dissent.

I begin with a survey of what I regard as cardinal first principles of

search and seizure law under article I, section 8. Second, I examine the

degree to which the majority opinion conforms to those principles. Third,

I suggest alternative approaches to the problems presented in this case.

Finally, I emphasize the importance of narrowly interpreting the

significance of this case.

I. Principles of Search and Seizure Law.

A. Overview of the Warrant Requirement. I begin with a brief

review of the language of our search and seizure provision in article I,

section 8, which states:

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 warrant clause of article I, section 8 has a number of

substantive constitutional requirements. First, there must be probable

cause for a search. Id. Second, the warrant must describe with

particularity the place to be searched. Id. Third, the warrant must

describe with particularity the persons and things to be seized. Id.

Each of these substantive requirements has independent

constitutional importance. The gateway requirement of probable cause

of course serves to limit government discretion and avoid general

searches. The particularity requirements, however, are also

constitutionally essential. They are proportionality requirements. Even
 39

when gateway probable cause is present, the proportionality

requirements of article I, section 8 serve to ensure that when a search is

warranted, the search is limited in scope by the nature of the underlying

problem. For instance, with respect to place, a warrant with ample

probable cause to search a “silver in color passenger train car” for

evidence of gambling infractions does not authorize the search of a

nearby “red caboose.” Long v. State, 132 S.W.3d 443, 444–45, 447, 451

(Tex. Crim. App. 2004) (internal quotation marks omitted). As to items, a

warrant to search for drugs does not authorize the officer to seize checks,

a social security card, or other items of identification. People v. Pitts, 13

P.3d 1218, 1220, 1223–24 (Colo. 2000) (en banc).

The genius of the gateway and proportionality requirements is that

the government must satisfy these requirements before a neutral and

detached magistrate. See State v. Short, 851 N.W.2d 474, 502 (Iowa

2014). This eliminates the risk of ex post facto explanations that

conform to the nature of the evidence ultimately found and ensures the

decision regarding compliance with constitutional norms is made before

a person not “engaged in the often competitive enterprise of ferreting out

crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92

L. Ed. 436, 440 (1948). As was noted by Judge Hufstedler some time

ago, “The requirement that [a probation] officer articulate his reasons for

making a search before he searches is a substantial deterrent to

impulsive and arbitrary official conduct and a real safeguard against

after-the-fact justifications.” Latta v. Fitzharris, 521 F.2d 246, 257 (9th

Cir. 1975) (Hufstedler, J., dissenting). The risk of ex post facto

explanations is very real. It is, of course, a fundamental principle of

search and seizure law that the validity of the search is not affected by

what it turns up. As we stated long ago, “No amount of incriminating
 40

evidence, whatever its source, will supply the place of [a] warrant.”

McClurg v. Brenton, 123 Iowa 368, 372, 98 N.W. 881, 882 (1904); see

also United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 228–29, 92

L. Ed. 210, 220–21 (1948). Yet, when incriminating evidence is found,

there is a temptation to manipulate the facts or distort search and

seizure law in order to uphold the search and sustain the resulting

criminal conviction. That is why in Johnson, the United States Supreme

Court held a warrantless search was invalid even though there was likely

ample probable cause to support the search. 333 U.S. at 13–15, 68

S. Ct. at 368–69, 92 L. Ed. at 440–41. As Justice Frankfurter noted,

“[T]he safeguards of liberty have frequently been forged in controversies

involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56,

69, 70 S. Ct. 430, 436, 94 L. Ed. 653, 662 (1950) (Frankfurter, J.,

dissenting), overruled on other grounds by Chimel v. California, 395 U.S.

752, 768, 89 S. Ct. 2034, 2042–43, 23 L. Ed. 2d 685, 696–97 (1969).

“ ‘[T]he procedure of antecedent justification . . . is central to the Fourth

Amendment.’ ” Katz v. United States, 389 U.S. 347, 359, 88 S. Ct. 507,

515, 19 L. Ed. 2d 576, 586 (1967) (quoting Osborn v. United States, 385

U.S. 323, 330, 87 S. Ct. 429, 433, 17 L. Ed. 2d 394, 400 (1966)).

As a result, whenever the warrant requirement is found to be

inapplicable, many important restrictions on governmental power are

lost. Not only is the gateway requirement of probable cause at risk, so

too is the proportionality requirement. Further, the requirement that the

government explain the basis for the search before it occurs in order to

avoid post hoc explanations is totally lost. That is why in Short, we

reinvigorated what is sometimes called the “warrant preference”

approach to search and seizure law under article I, section 8. 851

N.W.2d at 497; see generally James J. Tomkovicz, Divining and Designing
 41

the Future of the Search Incident to Arrest Doctrine: Avoiding Instability,

Irrationality, and Infidelity, 2007 U. Ill. L. Rev. 1417 (2007) (advocating

the warrant preference approach as the best interpretation of search and

seizure law).

B. Constitutional Provisions Related to Search and Seizure

Limit Arbitrary Exercise of Government Power. Historically, the

Crown’s claimed authority to engage in sweeping searches for violations

of British mercantile policies toward the colonies was a central cause of

the American Revolution. See State v. Ochoa, 792 N.W.2d 260, 271 (Iowa

2010). The focus of the famous Paxton’s Case was the legality of writs of

assistance, “which gave customs officers open-ended authority to search

homes for evidence of customs violations.” Id. (citing Tracey Maclin, The

Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. Rev.

925, 946 (1997)). When James Otis delivered his famous defense in

Paxton’s Case, calling for specific warrants and characterizing “ ‘the

freedom of one’s house’ ” as among “ ‘the most essential branches of

English liberty,’ ” id. (quoting William J. Cuddihy, The Fourth

Amendment: Origins and Original Meaning, 602–1791, at 377–78 (2009)

[hereinafter Cuddihy]), the rhetoric moved a young lawyer attending the

court session, John Adams, to later declare, “ ‘[t]hen and there the Child

Independence was born,’ ” id. at 272 (quoting Jacob W. Landynski,

Search and Seizure and the Supreme Court: A Study in Constitutional

Interpretation 37 (1966) [hereinafter Landynski]). What is clear from the

history is that constitutional provisions related to search and seizure

were designed to be a limitation on government power. Neither article I,

section 8 nor the Fourth Amendment is an enabling act extending the

reach of government.
 42

The focus of search and seizure law is eliminating arbitrary

exercise of government power whenever it might be used. While the text

of article I, section 8, like the Fourth Amendment, is challenging, it is

clear that the search and seizure strictures are not limited to criminal

matters. Other constitutional concepts, like the federal right against

self-incrimination, contain express limitations to criminal proceedings.

See U.S. Const. amend. V. No such limitation is contained in article I,

section 8. Article I, section 8 is not a constitutional chameleon that

changes color when the government invader presents a civil identification

card rather than a badge of law enforcement. The underlying motivation

of the government official is not and cannot be the determining factor.

As Justice Brandeis taught us years ago, “The greatest dangers to liberty

lurk in insidious encroachment by men of zeal, well-meaning but without

understanding.” Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct.

564, 573, 72 L. Ed. 944, 957 (1928) (Brandeis, J., dissenting); overruled

on other grounds by Katz, 389 U.S. at 353, 88 S. Ct. at 512, 19 L. Ed. 2d

at 583.

In any event, parole officers, like probation officers, have at least

two functions. Parole officers may serve the state interest by assisting

the parolee to complete parole successfully and be reintegrated into the

community. They also serve another purpose, however: ensuring that

persons convicted of crimes, who are more likely to engage in criminal

activity than members of the public generally, do not commit additional

crimes. See United States v. Knights, 534 U.S. 112, 120–21, 122 S. Ct.

587, 592, 151 L. Ed. 2d 497, 506 (2001) (recognizing dual concern of the

state in context of probationer’s residence search). These two purposes

of parole officers recognized in Knights are conjoined twins and cannot

easily be surgically separated. Ordinarily, in search and seizure
 43

jurisprudence, we do not inquire into the subjective motivation of

government officials. See State v. Simmons, 714 N.W.2d 264, 274 (Iowa

2006). That said, a home visit more likely reflects the function of

assisting in a parolee’s rehabilitation, while a specific search in private

areas of a residence is more likely to be pursuant to the parole officer’s

law enforcement function.

C. The Freestanding Reasonableness Clause as Ahistorical and

Antithetical to the Constitutional Values of the Warrant Clause. We

discussed the relationship between the reasonableness clause and the

warrant clause in Short, 851 N.W.2d at 501–02. It simply cannot be that

the reasonableness clause is a freestanding provision that trumps the

warrant clause. Id. Otherwise, the warrant clause would be

superfluous. See Rabinowitz, 339 U.S. at 70, 70 S. Ct. at 436, 94 L. Ed.

at 662 (“One cannot wrench ‘unreasonable searches’ from the text and

context and historic content of the Fourth Amendment.”). Indeed, the

meaning of reasonableness, certainly at the time of the adoption of the

Fourth Amendment to the United States Constitution, from which article

I, section 8 was derived, was likely used in the Blackstonian sense and

was a stand in for “lawful.” See Short, 851 N.W.2d at 501.

Those that emphasize reasonableness over the warrant

requirement often use a balancing test to determine the applicability of

the warrant requirement to broad categories of persons. The categorical

reasonableness test allowing courts to make pragmatic assessments of

the need for government action balanced against the interests of citizens

in determining the applicability of search and seizure requirements is not

explicitly mentioned in the text of article I, section 8 or in the Fourth

Amendment. The categorical reasonableness test was not invented until

relatively recently. See T. Alexander Aleinikoff, Constitutional Law in the
 44

Age of Balancing, 96 Yale L.J. 943, 948 (1987) [hereinafter Aleinikoff]

(noting balancing, as a “method of constitutional interpretation, . . . first

appears in majority opinions in the late 1930’s and early 1940’s”). As

noted by a leading scholar, reasonableness that engages in relativistic

balancing efforts reflects recent, “ideologically-driven judicial choices, not

a rendition of the original understanding.” 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, 224 (2007); see also Aleinikoff, 96 Yale L.J. at 948–49.

Categorical balancing tests present a troublesome methodology. A

constitutional vision of search and seizure employing categorical

balancing fails to zealously protect the rights of citizens because it is not

based on transparent and preestablished constitutional norms.

Untethered to such norms, categorical balancing is based on a quasi-

legislative process in which the court makes pragmatic policy

determinations that paternalistically relieve classes of government

activity from the central restrictions on government power contained in

the warrant requirement of article I, section 8.

Further, categorical or not, balancing tests based upon

reasonableness run the risk of being no test at all. An amorphous

doctrine based on reasonableness threatens to engulf search and seizure

law. See New Jersey v. T.L.O., 469 U.S. 325, 369–70, 105 S. Ct. 733,

757–58, 83 L. Ed. 2d 720, 752–53 (1985) (Brennan, J., concurring in

part and dissenting in part); Rabinowitz, 339 U.S. at 83, 70 S. Ct. at 443,

94 L. Ed. at 669 (“It is no criterion of reason to say that the district court

must find [a search] reasonable.”); see also Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 637, 109 S. Ct. 1402, 1424, 103 L. Ed 2d 639, 673

(1989) (Marshall, J., dissenting) (noting that absent warrant and
 45

probable cause standards, the 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”); Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 393 (1974) (stating reliance on

reasonableness threatens to turn search and seizure law into “one

immense Rorschach blot”). See generally Short, 851 N.W.2d at 501–02

(criticizing freestanding reasonableness-clause theory).

D. Security of the Home as Central to Search and Seizure

Protection. Oh, the words of Pitt the Elder!

“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 may not enter; all his
force dares not cross the threshold of the ruined tenement.”

Ochoa, 792 N.W.2d at 270 (quoting Nelson B. Lasson, The History and

Development of the Fourth Amendment to the United States Constitution

49–50 (1937)); see also Short, 851 N.W.2d at 495–96.

The concept of the home as one’s castle was a central part of

English law that the colonists brought to the new world. See Short, 851

N.W.2d at 501. In his oration in Paxton’s Case, Otis pronounced that

“ ‘the freedom of one’s house’ was among ‘the most essential branches of

English liberty.’ ” Id. (quoting Cuddihy at 377–78). John Adams

remembered that Otis argued that the writ of assistance in the case was

“ ‘against the fundamental principles of law, the privilege of house.’ ”

Ochoa, 792 N.W.2d at 271 (quoting Landynski at 34).

The concept of a home as one’s castle came to Iowa, too. Iowa

Governor Robert Lucas stated at the first Iowa constitutional convention

that he deemed the most important right was “ ‘to secure to the poor
 46

man a little spot of ground where he could build him a cottage and have

a home for himself and family, free from the fear of being turned out of

doors.’ ” Id. at 275 (quoting Fragments of the Debates of the Iowa

Constitutional Conventions of 1844 and 1846, at 159–61 (1900)). In

McClurg, we declared, “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 at 372, 98 N.W. at 882.

There is something about a home that generates poetic language in

the context of searches and seizures. The notion of “home sweet home”

may seem trite to some, but it is universal in our legal culture. It is no

surprise that protection of the home against government intrusion has

been declared one of the prime purposes of search and seizure law. In

the first substantive search and seizure case, Boyd v. United States, the

Supreme Court broadly noted that 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.” 116

U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746, 751 (1886), abrogated on

other grounds by Warden v. Hayden, 387 U.S. 294, 302, 87 S. Ct. 1642,

1647–48, 18 L. Ed. 2d 782, 789 (1967). As stated more recently in

United States v. United States District Court, “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); see also Kyllo v. United States, 533 U.S. 27, 37–38, 121 S.

Ct. 2038, 2045, 150 L. Ed. 2d 94, 104 (2001); Welsh v. Wisconsin, 466

U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984);

Payton v. New York, 445 U.S. 573, 589–90, 100 S. Ct. 1371, 1381–82, 63

L. Ed. 2d 639, 653 (1980); Ochoa, 792 N.W.2d at 277.
 47

E. The Role of Expectation of Privacy in Determining

Applicability of the Warrant Requirement. In Katz, Justice Harlan

surprised everyone, perhaps even himself, when he penned a concurring

opinion that simply took off and has had a life of its own. 389 U.S. at

360–62, 88 S. Ct. at 516–17, 19 L. Ed. 2d at 587–88 (Harlan, J.,

concurring). In Katz, the United States Supreme court overruled the

Olmstead case, a highly formalistic opinion which held government

eavesdropping did not violate the Fourth Amendment because it involved

no physical trespass. Olmstead, 277 U.S. at 466, 48 S. Ct. at 568, 72

L. Ed. at 951 (majority opinion); overruled by Katz, 389 U.S. at 353, 88 S.

Ct. at 512, 19 L. Ed. 2d at 583 (majority opinion). In his concurring

opinion, Justice Harlan noted shortcomings in traditional trespass

theory in search and seizure jurisprudence. Katz, 389 U.S. at 362, 88 S.

Ct. at 517, 19 L. Ed. 2d at 588 (Harlan, J., concurring). He stated that

the Fourth Amendment also protected “reasonable expectations of

privacy.” Id.

Justice Harlan plainly never intended his formulation to replace all

previous search and seizure law. His phrase was designed to supplement

existing law and extend search and seizure protections to include

government eavesdropping. See generally Short, 851 N.W.2d at 504

(explaining that the reasonable expectation of privacy standard was not

designed to dilute search and seizure protections). In United States v.

White, Justice Harlan made it clear that all intrusions significantly

jeopardizing Fourth Amendment liberties should require a warrant. 401

U.S. 745, 786–87, 91 S. Ct. 1122, 1143, 28 L. Ed. 2d 453, 478 (1971)

(Harlan, J., dissenting).

In a remarkable turn of events, Justice Harlan’s “reasonable

expectations of privacy” somehow became the test of the scope of the
 48

Fourth Amendment. And, in one of the great ironies of Fourth

Amendment jurisprudence, it was now used as a tool to reduce the reach

of Fourth Amendment protections! The test became a legal boomerang in

the hands of a later Supreme Court.

It may well be the time has come to abandon the reasonable-

expectations-of-privacy test. Although born with the best of intentions

and with excellent pedigree, it has been on legal parole now for a number

of years. The reasonable-expectations-of-privacy test runs the risk of

converting search and seizure law into a mere notice requirement.

Indeed, in California v. Carney, the United States Supreme Court

declared, improbably, that pervasive public regulation of automobiles

and their drivers through licensure, registration, equipment regulation,

and rules of the road puts drivers “on notice” that the passenger

compartment, which has nothing to do with registration, equipment or

rules of the road, may be searched without a warrant. 471 U.S. 386,

391–92, 105 S. Ct. 2066, 2069–70, 85 L. Ed. 2d 406, 413–14 (1985).

The time has probably come to revoke parole on the reasonable-

expectations-of-privacy test. No warrant required. The better approach

to privacy is that provided by the Oregon Supreme Court, which has

declared that the issue is not the privacy one reasonably expects, but the

privacy to which one has a right to enjoy. State v. Tanner, 745 P.2d 757,

762 n.7 (Or. 1987) (en banc); see Short, 851 N.W.2d at 504.

Alternatively, the analysis could focus on the text: the right of citizens to

be “secure” in their houses, papers, and effects. See Thomas K. Clancy,

Fourth Amendment: Its History and Interpretation 47 (2008); Ochoa, 792

N.W.2d at 277. Such an approach would be consistent with the original

purpose of the reasonable-expectations-of-privacy test in Katz. See 389

U.S. at 362, 88 S. Ct. at 517, 19 L. Ed. 2d at 588.
 49

F. Exceptions to the Warrant Requirement. While the warrant

requirement is central to search and seizure law, there have been well-

recognized exceptions to it, including searches and seizures incident to

arrest and arising from exigent circumstances when, for instance, crime

is ongoing or, the health and safety of individuals are imminently

threatened. We have repeatedly stated, however, that warrantless

searches are “virtually ‘per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions.’ ” State v.

Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854,

858 (1973)). These exceptions, however, must be jealously guarded and

“carefully drawn.” State v. Strong, 493 N.W.2d 834, 836 (Iowa 1992).

We have of course recognized exceptions to the warrant

requirement, and I do not quarrel with the proposition that they exist.

However, as in Camara v. Municipal Court, an exception to the warrant

requirement generally requires that the government demonstrate it is

simply inherently impracticable to obtain a warrant to accomplish the

compelling governmental mission. 387 U.S. 523, 536–39, 87 S. Ct.

1727, 1735–36, 18 L. Ed. 2d 930, 940–41 (1967). For instance, it would

be impossible to obtain a warrant prior to a Terry-type pat down without

arresting the suspect. Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868,

1879, 20 L. Ed. 2d 889, 905 (1968). In Camara, it would have been

impossible to obtain a warrant based upon probable cause at a specific

location because, while there certainly was an infestation within the

geographic area, there was no way to determine which specific residence

was experiencing the problem. See 387 U.S. at 536–38, 87 S. Ct. at

1735, 18 L. Ed. 2d at 939–41. A search incident to arrest must
 50

necessarily occur simultaneously with the arrest, not after the passage of

time required to obtain a warrant.

In considering exceptions to the warrant requirement, there is a

distinction between inherent impracticability and mere inconvenience.

Obtaining a warrant is always inconvenient in the sense that it imposes

some burdens on law enforcement. If mere inconvenience were enough

to excuse the warrant requirement, there would be little left of it.

Instead, inherent impracticability requires that, given the nature of the

problem and the policy being advanced, one simply cannot get a warrant

based on probable cause prior to the search.

The question of inherent impracticability of obtaining a warrant

was considered in a study of probation in Wisconsin. The survey found

that a warrant requirement would not unduly burden probation officers.

Howard P. Schneiderman, Conflicting Perspectives from the Bench and the

Field on Probationer Home Searches—Griffin v. Wisconsin Reconsidered,

1989 Wis. L. Rev. 607, 664 (1989). There is no reason to think a

different result would occur in the context of parole.

G. Rejection of Act of Grace, Waiver, or Constructive Custody

Theories for Parolees. Finally, it is important to note that we have

rejected the theories that parolees are not entitled to search and seizure

protections because they are in “constructive custody,” have “waived”

their search and seizure rights, or are on parole only through “an act of

grace.” See Ochoa, 792 N.W.2d at 290–91. In Ochoa, we rejected all

these theories, noting that although the state may have the power to

imprison a parolee, the fact that the parolee is released into the

community is the overriding factor for search and seizure analysis. See

id.
 51
II. Analysis of the Majority Opinion in Light of Search and
Seizure Principles.
Unfortunately, the majority opinion does not apply many of the
above principles in a straightforward fashion. The constitutional value of

a warrant—not simply the probable cause determination, but also the

proportionality requirements and the requirement of justification before

the fact—is not considered. The majority opinion on occasion, citing

United States Supreme Court precedent, flirts with a version of

“reasonableness” though ultimately rejects its most protean rendition in

a footnote. Further, the majority does not seem to recognize the

constitutional importance of the house-as-a-castle doctrine. And, it

ironically uses the concept of reasonable expectations of privacy as a

sword to cut at the core of search and seizure protection in the home.

While the majority uses “special needs” to support its result, it

glides over the critical question, namely, whether it is inherently

impracticable to obtain a warrant or just inconvenient. Further, it does

not address the fact that parole officers have two functions, including a

law enforcement function.

The majority seeks to limit the scope of the powers of parole

officers in several ways. It requires “reasonable suspicion.” Reasonable

suspicion is a tool of particularity that can help cabin government

conduct. See Baldon, 829 N.W.2d at 823 (Appel, J., specially

concurring); Ochoa, 792 N.W.2d at 273. Reasonable suspicion is said to

exist when “articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent officer”

to investigate further. Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct.

1093, 1098, 108 L. Ed. 2d 276, 286 (1990). It is something more than a

hunch, but something less than probable cause. See State v. Tague, 676

N.W.2d 197, 204 (Iowa 2004) (detailing reasonable suspicion standard);
 52

Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 Vand. L.

Rev. 407, 459–60 (2006) (same). An officer’s subjective belief that he or

she has sufficient suspicion to justify the intrusion is insufficient to

satisfy the reasonable suspicion standard. See Terry, 392 U.S. at 22, 88

S. Ct. at 1880, 20 L. Ed. 2d at 905–06.

However, here, there was no more than a hunch, especially after

the parole officers determined the ankle bracelet was functioning

properly and King had a reasonable explanation for why he had been in

his residence for the last two days. My view is consistent with a number

of cases. For instance, in People v. Thornburg, probation officers

recovered pornographic DVDs in a search of a probationer’s bedroom.

895 N.E.2d 13, 14–15 (Ill. App. Ct. 2008). Although the home visit,

pursuant to a probation agreement, was not cited as raising a

constitutional problem, the search of the bedroom was invalid because it

lacked reasonable suspicion. Id. at 19. In United States v. Payne, the

United States Court of Appeals for the Sixth Circuit held that the

defendant’s two prior drug convictions and an anonymous tip did not

amount to reasonable suspicion. 181 F.3d 781, 789–91 (6th Cir. 1999).

One court noted that a factor in determining whether a search was based

on reasonable suspicion or a hunch was whether a parolee had a

reasonable explanation for his whereabouts, which was certainly present

in this case. See Commonwealth v. Edwards, 874 A.2d 1192, 1196 (Pa.

Super. Ct. 2005).

III. Alternative Constitutional Visions.

A. Approach in Cullison. In my view, it would have been far

easier, far simpler, and far more consistent with search and seizure

constitutional norms, to simply follow the rule in State v. Cullison, 173

N.W.2d 533 (Iowa 1970). In Cullison, we rejected stripping or diluting the
 53

rights of parolees based on “what may best be described as a socio-

juristic rationalization, i.e., protection of the public and constructive

custody.” Id. at 536. Such an approach was not “constitutionally sound,

reasonable, fair or necessary.” Id. We further stated that the “ ‘dilution’

theory begins and ends nowhere, being at best illusory and evasive.” Id.

Plainly, in Cullison, we rejected a categorical balancing test based on

“reasonableness.” See id.

The majority opinion in this case flies directly against the Cullison

precedent. It does precisely what Cullison cautioned against, namely it

dilutes the search and seizure protections of parolees based upon “socio-

juristic rationalization.” See id. It is error to do so.

B. The Home Visit: Differentiating Between Parole Officers’

Functions of Rehabilitation and Law Enforcement. The majority

opinion evinces a pragmatic concern for the benevolent role of parole

officers. No doubt, parole officers, like the government officers in Knights

performing a search of a probationer’s residence, perform a dual function

of rehabilitating parolees while also ensuring that the law is enforced.

See 534 U.S. at 120–21, 122 S. Ct. at 592, 151 L. Ed. 2d at 506.

Ordinarily, it is difficult to separate dual purposes, and Cullison stands

for the proposition that we should not try to do so.

But there is an alternative constitutional vision. Under that vision,

a home visit is not a search. The purpose of the home visit is to meet

with the parolee and determine the status of the parolee in his or her

rehabilitation effort. When a parole officer begins to look into places in

the residence outside common areas, such as bedrooms, however, the

law enforcement function objectively predominates and a warrant is

required.
 54

There is support for this theory in caselaw. A number of cases

hold that a home visit by a parole officer is not a search. See, e.g., United

States v. LeBlanc, 490 F.3d 361, 367 (5th Cir. 2007); Fitzharris, 521 F.2d

at 250; State v. Moody, 148 P.3d 662, 666–67 (Mont. 2006). A home visit

in areas in which visitors are commonly entertained is likely to be

conducted for benevolent purposes of parole, namely, assisting the

parolee in completing parole and reintegrating into the community. A

visit in private areas of the residence, however, is more likely to be a law

enforcement function. Thus, under this line of cases, the authority to

conduct a home visit in areas in a residence in which visitors are

customarily allowed does not carry with it the authority to conduct a

search of private areas of the residence. See State v. Guzman, 990 P.2d

370, 373–74 (Or. Ct. App. 1999) (“[T]he authority to conduct a home visit

under the conditions of probation does not encompass the authority to

conduct a search.”). The home visit, however, cannot be used as a

subterfuge to avoid the probable cause burden that must be met to

support an investigative search. “Once the purpose behind the search

shifts from a home visit to a quest for evidence to be used in a criminal

prosecution, the [government] may only enter the premises upon

securing a warrant supported by full probable cause.” Commonwealth v.

Young, No. CRIM. A. 98-11253, 1999 WL 218423, at *3 (Mass. Super. Ct.

Mar. 30, 1999).

C. Lack of Reasonable Suspicion. A third constitutional vision

simply requires that the concept of reasonable suspicion have some

teeth. In this case, the facts supporting reasonable suspicion,

particularly after the ankle bracelet issue was resolved, were rather thin.

The difference between reasonable suspicion and a hunch is difficult to

describe, perhaps, but in this case, the evidence falls short of what is
 55

required to support a warrantless search. This is particularly so given

our general admonition, expressed years ago, that we give the search and

seizure provisions of article I, section 8 “a broad and liberal

interpretation for the purpose of preserving . . . liberty.” State v. Height,

117 Iowa 650, 661, 91 N.W. 935, 938 (1902).

IV. Narrow Interpretation of This Case.

Finally, I note that the majority opinion is extremely limited. It

does not apply to the activities of law enforcement. It does not endorse

freestanding reasonableness, a hungry beast that could threaten the

warrant requirement. It is limited to a search for drugs when the

underlying crime for which the parolee was convicted is a drug offense

and when the particularity requirement of reasonable suspicion has been

determined to be present. It reserves the question of whether a parolee

has a right to refuse the search. Most importantly, this case should not

be seen as a wholesale adoption of so-called “special needs” as developed

by the ever-expanding cases of the United States Supreme Court.

For the reasons stated above, I dissent.

Wiggins and Hecht, JJ., join this dissent.