State of Iowa v. Robert Dale Lowe, Jr.

IN THE SUPREME COURT OF IOWA
No. 10–1454

Filed January 20, 2012

STATE OF IOWA,

Appellant,

vs.

ROBERT DALE LOWE, JR.,

Appellee.

Appeal from the Iowa District Court for Polk County, D.J. Stovall,

Judge (July 20, 2010 suppression ruling) and Joel D. Novak, Judge

(August 30, 2010 suppression ruling).

The Supreme Court granted the parties’ cross-applications for

discretionary review of the district court’s grant and denial of the motions

to suppress. DECISION OF THE DISTRICT COURT AFFIRMED ON

APPEAL; DECISION OF THE DISTRICT COURT AFFIRMED ON

CROSS-APPEAL AND CASE REMANDED.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, John P. Sarcone, County Attorney, and

Daniel C. Voogt, Assistant County Attorney, for appellant.

Nicholas A. Sarcone and Dean A. Stowers of Stowers Law Firm,

West Des Moines, for appellee.
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ZAGER, Justice.

The State appeals an adverse ruling on a motion which suppressed

statements made by the defendant, Robert Lowe, as having been made in

response to a promise of leniency, thereby rendering them involuntary.

Lowe cross-appeals, claiming the district court erred in overruling his

motion to suppress his statements as a violation of Miranda and, more

specifically, as a violation of the ban on questioning a defendant after

that defendant has invoked his right to counsel. Lowe further claims the

district court erred in not suppressing all evidence found at the scene

because the consent that led to the search of the premises was only

obtained by prior police illegality. Lowe also claims that the consent to

search provided by Cody Audsley was not voluntary and that he—Lowe—

was removed from the area to prevent him from objecting to any search,

in violation of the Fourth Amendment. We hold that the search was

proper and that the motion to suppress the physical evidence obtained

as a result of the search was properly denied. We further hold that

because there was not sufficient exigency to justify the police reinitiating

questioning of Lowe following Lowe’s request for counsel, the public

safety exception to Miranda does not apply under the facts of this case,

and therefore, Lowe’s statements were properly suppressed.

I. Background Facts and Proceedings.

At 10:00 p.m. on April 6, 2010, dispatch informed Detective Corey

Schneden of the Ankeny Police Department that a female (Cindy) was

being treated in the emergency room of a local hospital for a drug

overdose. Schneden was advised the female likely ingested the drugs at

Cody Audsley’s residence, a mobile home in Ankeny. Schneden went to

Audsley’s residence for the purpose of interviewing her. He was

accompanied by Officers Webb and Ripperger, both of whom were in
 3

uniform. Schneden was not in uniform, but was wearing a police

department T-shirt, as well as a badge and gun.

Upon arrival, Schneden approached the main entrance on the

south side of the mobile home. Ripperger was directly behind Schneden,

and Webb was on a gravel drive east of and adjacent to Audsley’s mobile

home. Webb went to the east side of the mobile home to prevent anyone

from fleeing when Schneden knocked on the door. Webb was standing

on a gravel driveway between Audsley’s mobile home and another mobile

home and was about a foot away from a window with a partially open

blind which was broken or bent. When Schneden knocked on the door,

Webb observed Audsley retrieve something from the kitchen table and

place it in a kitchen cabinet. Webb also observed Lowe run towards the

back of the residence and out of view. At this point, Webb went to the

yard on the north side of the residence to determine whether Lowe had

fled.

After Schneden knocked on the door, he identified himself as a

police officer. Schneden asked for, and received, Audsley’s permission to

enter the residence. As he entered, he introduced Ripperger and asked if

they could ask Audsley a few questions. Audsley agreed. At this point,

Webb was advised that both residents were now in the living area, so

Webb joined Schneden and Ripperger in the residence. Audsley never

gave Webb explicit permission to enter, but never asked him to leave. At

no point did Audsley ask the officers to leave.

After entering, the police encountered Lowe and asked him to

identify himself. Lowe produced identification and stated he lived with

his mother elsewhere in Ankeny. He specifically denied that he lived at

Audsley’s residence. However, Lowe also stated that he was staying at

Audsley’s and that he was a guest. Later on in the evening, Lowe was
 4

allowed to change from gym shorts into sweatpants. Officers later found

male clothing in a bedroom of the mobile home.

In response to questioning, Audsley denied using drugs with Cindy

that day. During this initial questioning, Audsley was repeatedly

reminded of the very serious medical condition Cindy was facing and was

also confronted with Webb’s observation of Audsley grabbing something

from the table and placing it in the kitchen cabinet. During this time,

officers asked her at least three times for consent to search the

residence. While she did not expressly deny consent the first two times,

she said no on the third occasion. At that point, Schneden asked Lowe

to step outside with him to talk out of Audsley’s presence. Schneden was

outside with Lowe for only a few minutes. He asked Lowe if he knew

what drugs Cindy might have taken earlier that day and explained that

Cindy was in need of medical treatment and that the officers needed to

know what she might have taken. According to Schneden, Lowe was free

to leave at any time. Lowe denied having knowledge of any drugs Cindy

might have taken.

While Schneden and Lowe were outside, Ripperger and Webb

continued their questioning of Audsley. Webb told Audsley that the

officers needed to know what Cindy had taken and that Cindy’s life might

be in danger if Audsley did not tell them what she knew. Audsley then

responded, “We smoked weed together. Do you want it?” At that point,

Ripperger asked Audsley where the marijuana was, and Audsley pointed

to a Del Monte fruit can on the coffee table. Around this time, Schneden

and Lowe reentered the residence, and Ripperger told Schneden that

Audsley admitted smoking marijuana earlier in the day with Cindy and

that there was marijuana hidden in the fruit can on the table. With

Audsley’s permission, Webb picked the fruit can up. He then asked
 5

Audsley for consent to open it, which he received. After unscrewing a

false bottom on the can, Webb found a pipe and marijuana. Once the

marijuana was discovered, Audsley and Lowe were not free to leave.

Audsley then refused to consent to a search of the rest of the residence.

Around midnight on April 6, 2010, Schneden contacted Detective

Matthew Jenkins, a member of the Ankeny Police Department assigned

to the Mid-Iowa Narcotics Task Force, to assist in obtaining a search

warrant for Audsley’s mobile home. The probable cause for the search

warrant was the discovery of the marijuana and drug paraphernalia. 1

The police did not begin searching the residence until 3:00 a.m. when

Jenkins arrived with the search warrant. At that time, Lowe and Audsley

were inside the residence and neither was in handcuffs. Jenkins

provided each of them with the Miranda warning. While Audsley agreed

to speak with Jenkins, Lowe immediately requested to speak with

counsel. Lowe was then placed in a squad car. Audsley remained in the

mobile home during the search.

Sometime during the search, Schneden entered the bathroom area

and found what he believed to be components of a meth lab. This was

not an active meth lab, and none of the officers reported smelling any

odors associated with methamphetamine production. After being advised

of this discovery, Jenkins became concerned for the safety of his officers

and the neighbors. He spoke to Audsley, who confirmed that Lowe had

been involved in manufacturing methamphetamine in the past, but it

was not to be made in the residence. Officers were told to suspend their

1The record does not contain the application for the search warrant or the

search warrant itself. However, both Lowe and the State agree that the marijuana and
drug paraphernalia found as a result of the consensual search formed the basis for the
search warrant.
 6

search until Jenkins could speak to Lowe about whether there was

anything dangerous in the residence.

Jenkins then went back to the squad car, opened the door, and

reiterated to Lowe that he did not have to speak with him, that he was

“not asking to get you [Lowe] in trouble,” but that he did not want to find

any anhydrous. Lowe confirmed that there was nothing active going on

at that time, but Lowe stated that there was an empty anhydrous tank in

the shed and that it was his, not Audsley’s.

On May 4, 2010, Lowe and Audsley were charged with conspiracy

to manufacture a controlled substance, manufacturing a controlled

substance, possession of anhydrous ammonia with intent to

manufacture a controlled substance, and possession of lithium with

intent to manufacture a controlled substance. Lowe moved to suppress

his statements to police, alleging the statements were elicited in violation

of his rights under the Fifth Amendment of the United States

Constitution and article I, section 9 of the Iowa Constitution when

Jenkins reinitiated questioning after Lowe invoked his right to counsel.

After an evidentiary hearing, the district court denied the motion, finding

that Jenkins reinitiated questioning out of a concern for officer safety

and that such questioning was proper under a public safety exception to

Miranda.

Lowe filed another motion to suppress on June 17, alleging the

search warrant for Audsley’s mobile home was based on information

obtained by a prior illegal search in violation of the Fourth Amendment

to the United States Constitution and article I, section 8 of the Iowa

Constitution. After an additional evidentiary hearing, the district court

overruled Lowe’s second motion, finding Audsley’s consent was freely and

voluntarily given and there was no evidence of coercion in the record.
 7

The next day, Lowe moved to enlarge the findings and rulings, claiming

the court insufficiently supported its findings and did not rule on all the

issues before it, namely whether Audsley’s consent was induced by a

prior illegal search. The motion to enlarge the findings and rulings was

overruled by the motion judge. A motion to reconsider this ruling was

brought before the trial judge who also denied it. Further motions on the

issues involving the search and seizure of physical evidence were also

denied.

On July 7, Lowe filed a renewed motion to suppress his statements

and asked the court to reopen the record based on newly received

recordings of his conversation with Jenkins. This motion additionally

argued the statements should be suppressed as a promise of leniency

under State v. McCoy, 692 N.W.2d 6 (Iowa 2005). Lowe argued his delay

in asserting his claim of promissory leniency was based on the State’s

failure to deliver the audio recordings of his exchange with Jenkins in a

timely fashion.

In its resistance to the motion, the State argued the statements

were not barred as a Miranda violation based on the public safety

exception. The State also argued Lowe’s July 7 motion was untimely

because it was not brought within forty days of arraignment, as required

under Iowa Rule of Criminal Procedure 2.11(4), and any delay in Lowe

receiving the recordings of his conversation with Jenkins was irrelevant

because Lowe had a duty to disclose these facts to his attorney. After a

hearing, the district court ruled that Jenkins was concerned for the

safety of himself and others, so the public safety exception to Miranda

would apply. However, the court ruled Jenkins’s statement, “I’m not

asking to get you in trouble,” was a promise of leniency that Lowe would

receive some benefit for his response and that led Lowe “to believe that if
 8

he answered the detective’s questions he could do so without fear of his

answers being used against him.” Accordingly, the district court granted

Lowe’s motion to suppress the statements made to Jenkins as a promise

of leniency.

The State sought discretionary review of the ruling on the

suppression of Lowe’s statements, and Lowe filed a cross-application for

discretionary review of the rulings of the district court regarding the

search and seizure of physical evidence. We now consider the merits of

each party’s arguments.

II. Standard of Review.

Lowe claims that the search was conducted without Audsley’s valid

consent, that the search was conducted without his consent, and that

these actions violate the state and federal constitutions. Lowe also

claims the police reinitiated questioning of him after he invoked his right

to counsel. Our review of constitutional issues is de novo. State v. Lane,

726 N.W.2d 371, 377 (Iowa 2007); see also State v. Palmer, 791 N.W.2d

840, 844 (Iowa 2010) (holding we review de novo a district court’s

decision to admit statements allegedly obtained in violation of the

accused’s constitutional rights). This review requires us to make an

independent evaluation of the totality of the circumstances as shown by

the entire record, including the evidence presented at the suppression

hearings. Id. Because of the district court’s opportunity to evaluate the

credibility of witnesses, we will give deference to the factual findings of

the district court, but we are not bound by them. Id.

Lowe argues the evidence against him should be suppressed under

both the state and federal constitutions. However, “we generally decline

to consider an independent state constitutional standard based upon a

mere citation to the applicable state constitutional provision.” State v.
 9

Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially

concurring). 2

III. The Physical Evidence Obtained in the Home and Shed.

Lowe claims that the physical evidence found in Audsley’s mobile

home—the marijuana, pipe, and the precursor substances—must be

suppressed because the evidence was obtained in violation of the Fourth

Amendment to the United States Constitution and article I, section 8 of

the Iowa Constitution. Though neither party provided the search

warrant application to aid in our review, both parties agree, and the

district court found, that the marijuana formed the basis for the search

warrant. Therefore, if Audsley’s consent was invalid based on either the

exploitation of a prior illegal search or seizure, or because Audsley’s

consent was not voluntary, then there is no other basis for the warrant

in the record, and the physical evidence obtained pursuant to that

search warrant must be suppressed.

Lowe also points to Georgia v. Randolph, 547 U.S. 103, 126 S. Ct.

1515, 164 L. Ed. 2d 208 (2006), and claims that under Randolph, the

police were required to obtain his consent in order to use the evidence

against him. Because they did not obtain his consent, Lowe argues that

the marijuana and any evidence recovered pursuant to the search

warrant predicated on the discovery of the marijuana cannot be used

against him.

Lowe claims that Audsley’s consent was invalid. The Supreme

Court has stated that “Fourth Amendment rights are personal rights

2Onappeal, Lowe only makes the argument that the Iowa Constitution should
be interpreted differently than the United States Constitution when he claims the police
should have been required to obtain his consent before searching the fruit can.
Therefore, unless we indicate otherwise, we assume for the purposes of this appeal that
the United States Constitution and the Iowa Constitution should be interpreted in an
identical fashion. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).
 10

which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S.

128, 133–34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387, 394 (1978) (citation

and internal quotation marks omitted); see also State v. Naujoks, 637

N.W.2d 101, 106 (“The right afforded by the Fourth Amendment is

specific to the individual and may not be invoked by third persons.”). In

order to object to the evidence on constitutional grounds, Lowe must

show that his own constitutional rights, under either the state or federal

constitutions, have been violated. If he can show that his rights have

been violated, then “[w]e are not inclined to require defendant to make an

independent showing of standing.” State v. Henderson, 313 N.W.2d 564,

565 (Iowa 1981); see also Minnesota v. Carter, 525 U.S. 83, 87–88, 119 S.

Ct. 469, 472, 142 L. Ed. 2d 373, 379 (1998) (noting that the “standing”

doctrine was rejected in Rakas and “in order to claim the protection of

the Fourth Amendment, a defendant must demonstrate that he

personally has an expectation of privacy in the place searched, and that

his expectation is reasonable”). Lowe’s ability “to assert a Fourth

Amendment violation will stand or fall on [his] ability to show a

substantive violation which in turn is based on a showing of a legitimate

expectation of privacy in the particular area searched or the particular

objects seized.” Henderson, 313 N.W.2d at 565 (citing Rakas, 439 U.S.

at 148, 99 S. Ct. at 432, 58 L. Ed. 2d at 404). 3

We employ a two-step approach to determine whether there has

been a violation of the Fourth Amendment or article I, section 8 of the

Iowa Constitution. State v. Fleming, 790 N.W.2d 560, 564 (Iowa 2010);

see also Naujoks, 637 N.W.2d at 106; State v. Halliburton, 539 N.W.2d

3We note that it is not necessary for a defendant to make an independent
showing of standing because “[t]he standing issue inheres in the [determination of a
legitimate expectation of privacy].” State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984).
 11

339, 342 (Iowa 1995); State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984). To

satisfy the first step, an individual challenging the legality of a search

has the burden of showing a legitimate expectation of privacy in the area

searched. Fleming, 790 N.W.2d at 564.

The determination of whether a person has a legitimate
expectation of privacy with respect to a certain area is made
on a case-by-case basis, considering the unique facts of each
particular situation. The expectation must also be one that
society considers reasonable.

Id. (citations and internal quotation marks omitted). Therefore, as a

preliminary matter, we must determine whether Lowe had a reasonable

expectation of privacy in Audsley’s mobile home. An expectation of

privacy must be subjectively and objectively legitimate and will be

determined “on a case-by-case basis.” Naujoks, 637 N.W.2d at 106. An

overnight guest has a legitimate expectation of privacy in his host’s

home. Id. Leaving possessions in another’s residence and making

frequent visits are also factors that favor a legitimate expectation of

privacy. State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004).

Although Lowe denied living at Audsley’s residence when the

officers first entered, it appeared to the officers that Lowe was a guest of
Audsley’s. Lowe had clothes and other items of a personal nature in

Audsley’s mobile home. Additionally, according to the minutes of

testimony, Lowe had been staying there for about six months. Based on

these unique subjective and objective facts, we conclude Lowe had a

legitimate expectation of privacy in Audsley’s mobile home.

Since Lowe has shown a legitimate expectation of privacy in

Audsley’s mobile home, we must move to step two of the analysis in

which we must decide whether the State unreasonably invaded the

protected interest. Fleming, 790 N.W.2d at 564; see also Naujoks, 637
 12

N.W.2d at 106. “Warrantless searches are per se unreasonable if they do

not fall within one of the well-recognized exceptions to the warrant

requirement.” Naujoks, 637 N.W.2d at 107. Consent searches are one of

these exceptions. Id. To be valid, consent must be voluntary. See State

v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001).

The officers did not have a warrant when they first approached

Audsley’s residence, but they received Audsley’s consent to enter the

mobile home and ultimately to search the fruit can. Lowe claims that

Audsley’s consent was the exploitation of prior police illegality, making it

“fruit of the poisonous tree.” See Lane, 726 N.W.2d at 383. Lowe also

claims Audsley’s consent was not voluntary. If either of these claims is

accurate, then Audsley did not validly consent to the search of the fruit

can. The State has not provided any basis other than Audsley’s consent

to justify the search. If Audsley’s consent was involuntarily obtained,

then the police would have unreasonably searched her residence which,

as stated above, is an area where Lowe had a legitimate expectation of

privacy. We now turn to Lowe’s challenges to Audsley’s consent.

A. Was Audsley’s Consent to Search the Result of Prior Police

Illegality? Around 11:00 p.m., Webb received consent to search what

appeared to be a can of Del Monte fruit cocktail that was sitting in

Audsley’s living room. The fruit can contained a false bottom which held

marijuana and a pipe. The State asserts Audsley voluntarily consented

to the search. Lowe does not dispute that Audsley told the officers they

could search the fruit can. Lowe asserts that Audsley’s consent was only

produced by exploiting prior police illegality, that her consent was not

voluntary, and that even if it were, the evidence is still inadmissible

against Lowe because he did not consent to the search.
 13

Lowe points to two actions he claims constitute illegal searches

and seizures prior to the consensual search of the fruit can. First, he

claims the police searched the mobile home illegally when Webb looked

in the windows prior to the officers knocking at the door. Second, he

claims the police seized Audsley and him without reasonable suspicion

prior to the discovery of the marijuana when they exceeded the scope of

Audsley’s consent to a knock and talk and “took over” the mobile home.

1. The activities of the police prior to entering the mobile home. We

turn first to Lowe’s contention that Webb searched the mobile home by

looking in the windows. A person in his dwelling with the window

coverings almost closed certainly has some expectation of privacy. State

v. Davis, 228 N.W.2d 67, 72 (Iowa 1975), overruled on other grounds by

State v. Hanes, 790 N.W.2d 545, 550 & n.1 (Iowa 2010). However, a

search only occurs if there is a violation of an expectation of privacy “that

society considers reasonable.” State v. Breuer, 577 N.W.2d 41, 46 (Iowa

1998). Regarding driveways, we have noted that “[i]t is common for

solicitors, operators of motor vehicles, and other individuals to enter

unsecured driveways of private residences.” State v. Lewis, 675 N.W.2d

516, 523 (Iowa 2004). Therefore, a defendant “could not have had a

reasonable expectation of privacy in his driveway” and the Fourth

Amendment would not prevent the police from entering it. Id.; see also

State v. Dickerson, 313 N.W.2d 526, 531–32 (Iowa 1981).

Webb looked through Audsley’s windows while he was standing on

the driveway of her mobile home. We have distinguished between merely

looking into a protected area from a public vantage point and making

observations with the naked eye—which is not a search—and actually

entering the protected area without the consent of the owner and

conducting a warrantless search. See Lewis, 675 N.W.2d at 523–24.
 14

The police are free to observe areas they may not constitutionally enter

without a warrant or some other recognized exception to the warrant

requirement. See id. Officers entering areas that are open to the public

do not wear a blindfold. Dickerson, 313 N.W.2d at 531. So long as

officers make their observations from a location where they have a right

to be, they have “a right to see what [is] visible from that position.” Id. at

532; see also Lewis, 675 N.W.2d at 523 (“[T]here is no legitimate

expectation of privacy and no search within the meaning of the Fourth

Amendment when authorities can view an activity occurring in the

curtilage from a public area.”).

In applying these legal principles to the facts of this case, we must

analyze the significance of Webb’s location when he observed Audsley

place something in the kitchen cabinet and saw Lowe run to the back of

the mobile home. Lowe claims that this observation constituted an

illegal search and that it was later exploited to gain Audsley’s consent.

Webb testified that he was outside the east window of the mobile home

when he saw Audsley put something in the cabinet, that he was standing

on the gravel drive on the east side of the house when this occurred, and

that the blind was partially open so that he could readily see into the

residence. As Audsley was placing something in the cabinet, Webb

observed Lowe run to the back of the residence. It was only at that point

that Webb entered the backyard. We need not determine whether

entering the backyard was an invasion of a legitimate expectation of

privacy because Webb did not confront Audsley or Lowe with any

observations he made from that vantage point. Lowe’s claim is that

confronting Audsley with the fact that Webb had seen her put something

in the cabinet was an exploitation of prior police illegality. We disagree.

When Webb observed Audsley in the kitchen, he was standing on the
 15

gravel driveway on the east side of the mobile home. This was a public

vantage point where the officer had a right to be, and an observation

made with the naked eye from that point is not a search. Lewis, 675

N.W.2d at 523. Since these observations were not illegal searches,

confronting Audsley with them could not be the exploitation of a prior

illegal search.

2. The officers’ alleged seizure of Lowe and Audsley after entering

the mobile home. Lowe contends that the police detained both Audsley

and him without reasonable suspicion and in violation of his Fourth

Amendment rights and that this detention was exploited to gain

Audsley’s later consent to search. As a preliminary matter, we note that

ordinarily, a defendant cannot challenge the seizure of another person. 6

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 11.3, at 129 (4th ed. 2004) [hereinafter LaFave] (“As for

seizure of a person, it is clear that one person lacks standing to object to

the seizure of another.”). This is because “a defendant can urge the

suppression of evidence obtained in violation of the Fourth Amendment

only if that defendant demonstrates that his Fourth Amendment rights

were violated by the challenged search or seizure.” United States v.

Padilla, 508 U.S. 77, 81, 113 S. Ct. 1936, 1939, 123 L. Ed. 2d 635, 640

(1993). The mere seizure of another person would not, ordinarily, violate

the Fourth Amendment rights of a third party. In this case, however,

Lowe alleges that Audsley was improperly seized and that prior illegal

seizure was exploited to gain her consent to search the fruit can. Lowe is

therefore permitted to challenge the seizure of Audsley because, if

Audsley was illegally seized and that seizure was exploited to gain her

consent, then her consent would be fruit of the poisonous tree, making it

invalid. If her consent was invalid, then the police would have
 16

unreasonably searched an area where Lowe had a legitimate expectation

of privacy, therein violating his rights under the state and federal

constitutions. 4

“Whether a ‘seizure’ occurred is determined by the totality of the

circumstances.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008). “The

Supreme Court has long recognized that not all police contacts with

individuals are deemed seizures within the meaning of the Fourth

Amendment.” State v. Smith, 683 N.W.2d 542, 546 (Iowa 2004) (citation

and internal quotation marks omitted). Encounters with the police

remain consensual “[s]o long as a reasonable person would feel free to

disregard the police and go about his business.” Id. at 547 (citation and

internal quotation marks omitted). Generally, police questioning, and

the responses it elicits, does not constitute a seizure. Wilkes, 756

N.W.2d at 843; State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004).

For a seizure to occur, there must be “objective indices of police

coercion.” Wilkes, 756 N.W.2d at 843. The fact that an officer shows a

badge, is “visibly armed,” or is in uniform has been given little weight in

the analysis. See id. at 843. In order to maintain the consensual nature

of the encounter, there should be “no show of authority, no intimidation,

and no use of physical force by the officers in their encounter.” Reinders,

690 N.W.2d at 83. Other signs of a seizure would be “evidence the

[officer] used a commanding or threatening tone, displayed a weapon, or

touched [the suspect].” Smith, 683 N.W.2d at 547. In sum, we must

determine whether the officers impaired Audsley’s ability to control her

4From this point on, we will only deal with the alleged seizure of Audsley. Lowe
never consented to the search of the fruit can, making it impossible for the police to
exploit a seizure of Lowe to gain his consent.
 17

own residence or whether the “officers simply engaged [her] in

conversation.” Reinders, 690 N.W.2d at 83.

When the officers arrived at Audsley’s residence, Schneden

identified himself as a police officer and asked for permission to enter in

order to question Audsley regarding a woman who had overdosed on

drugs. Audsley specifically consented to Schneden and Ripperger’s

entry, and she never objected to Webb entering immediately thereafter.

Audsley implicitly consented to Webb’s entry. Audsley refused to

consent to a search of her entire residence, but never asked the officers

to leave. The only instruction Audsley ever gave the officers—that they

did not have permission to search her entire residence—was followed.

Schneden characterized his interaction with Lowe and Audsley as

“conducting an interview.” During the course of that interview,

Schneden took down Audsley’s information, recorded Lowe’s information

from his identification card, and asked for both of their phone numbers,

which they provided without objection. During the course of the

interview, Audsley willingly shared her interactions with Cindy during

the day. Schneden then asked questions about her relationship with

Cindy. He also informed Audsley that Cindy stated that she had

consumed something she had gotten from Audsley earlier that day.

Audsley denied that she had given Cindy anything illegal, but there is no

evidence that the officers were lying about the statements Cindy made at

the hospital or her current medical condition. Audsley admitted that she

knew Cindy smoked marijuana, repeatedly denied giving Cindy anything,

and denied having any drugs in the mobile home. She did not allow the

officers to search because she felt there was no reason to. Webb then

confronted Audsley with his observations that she hid something when

the officers knocked on the door. When Audsley denied putting
 18

something in the cabinet, Webb stated, “Don’t lie to me, ‘cause I was

standing right there at the window and watched you do it.”

At that point, Lowe was asked to go outside with Schneden to

answer a few questions about his interactions with Cindy. While Lowe

and Schneden were outside, Webb and Ripperger continued to question

Audsley. Audsley denied putting anything in the cabinet, and Webb

asked why she was lying to him. Webb or Ripperger told Audsley, “The

thing is, I don’t give a shit about arresting you; I don’t give a shit about

charging you,” but that the doctors needed to know what Cindy took or

“she may die from it.” One of the officers reminded Audsley that Cindy

indicated she got something from Audsley earlier that day. At that point,

Audsley stated, “We smoked weed together. Do you want it?” Lowe and

Schneden then reentered the mobile home. At this point, Audsley gave

Webb permission to pick up and open the fruit can containing the

marijuana and drug paraphernalia. Schneden asked if the substance

was only marijuana, and Audsley confirmed that it was. Audsley then

refused to consent to a search of her entire residence. Webb and

Schneden continued to try to find out if Audsley knew what else Cindy

had taken, in addition to smoking marijuana, and Webb emphasized the

danger that Cindy was in. However, these questions occurred after

Audsley consented to the search of the fruit can, and therefore, they

would not impact the validity of the consent that Audsley had already

given.

During this encounter, all three officers were armed and had

badges, and two were in uniform. The officers never drew their weapons

or touched Audsley, and they did not threaten her with arrest. The

officers questioned Audsley regarding the overdose, and repeatedly

reminded her that if she were not forthcoming with any information she
 19

had, it could lead to further health problems for Cindy. There is no

evidence in the record that this claim was false. While the officers may

have raised their voices, they did not use threats, intimidation, or

physical force in such a way that would have impaired Audsley’s ability

to control her own residence. There were no “commands” to Audsley that

she was required to tell the officers what they wanted to know, only

requests for information. There were no commands to Lowe that would

give Audsley the impression she had been seized. Schneden asked Lowe

to step outside with him, and Lowe willingly did so. There is no evidence

either Lowe or Audsley expressed any objection to Schneden’s request to

talk to Lowe outside Audsley’s presence. 5

After reviewing the totality of the circumstances, we determine that

Audsley was not “seized” or detained in violation of the Fourth

Amendment. Audsley allowed the police into her home and voluntarily

answered their questions. She willingly discussed her interactions with

Cindy throughout the day and allowed Schneden to read text messages

off of her phone. The officers were, as one might suspect, armed and

wearing badges and uniforms. This does not transform a consensual

encounter with the police into a detention. Audsley never asked the
police to leave, and the one limit she placed on police activity inside her

home—that the officers not search the entire residence—was respected

until the officers obtained a search warrant. 6 Under the facts of this

5We also note that, despite the claims in his brief, Lowe was not directed where
to sit and officers did not accompany him while he changed into sweatpants, until after
the marijuana was discovered. These actions, therefore, could not have led Audsley to
feel as though she had been “seized” by the police prior to her consent to search.
6Lowe’smotion to suppress sought to exclude evidence obtained not only after
consent to search was obtained, but also after police illegality. We have stated the
following:
“When a claim of consensual search is preceded by illegal police action
. . ., the government must not only show the voluntariness of the
 20

case, we cannot conclude that there was any prior illegal police action

leading up to the consent obtained from Audsley.

B. Was Audsley’s Consent to Search Voluntary? A warrantless

search conducted by free and voluntary consent does not violate the

Fourth Amendment. Reinier, 628 N.W.2d at 465 (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44, 36 L. Ed. 2d

854, 858 (1973)). Consent is considered to be voluntary when it is given

without duress or coercion, either express or implied. See Schneckloth,

412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. This test

balances the competing interests of legitimate and effective police

practices against our society’s deep fundamental belief that the criminal

law cannot be used unfairly. See id. at 224–25, 93 S. Ct. at 2046–47, 36

L. Ed. 2d at 861. Thus, the concept of voluntariness which emerges as

the test for consent represents a fair accommodation of these interests

and values. See id. at 229, 93 S. Ct. at 2048–49, 36 L. Ed. 2d at 864.

The State has the burden to prove the consent was voluntary, and

voluntariness is a “ ‘question of fact to be determined from the totality of

all the circumstances.’ ” Lane, 726 N.W.2d at 378 (quoting Schneckloth,

412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 862). “The State is

required to establish the consent was voluntary by a preponderance of

the evidence.” Reinier, 628 N.W.2d at 465.

________________________________
subsequent consent under the totality of the circumstances, but must
also establish a break in the illegal action and the evidence subsequently
obtained under the so-called “fruit of the poisonous tree” doctrine.
. . . Thus, there are two issues to analyze in a consent-to-search case
such as this: (1) voluntariness under the totality of the circumstances,
and (2) exploitation under the fruit of the poisonous tree doctrine.”
State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007) (citations omitted). The two concepts
are not the same. However, because we conclude that no prior illegal police action has
been established, we will focus on whether the consent was voluntary.
 21

The question of voluntariness requires the consideration of many

factors, although no one factor itself may be determinative. See generally

4 LaFave, § 8.2, at 50–141 (discussing several factors bearing upon the

validity of consent). In determining whether consent is voluntary, courts

examine the totality of the circumstances, including relevant factors such

as:

“(1) the individual’s age and mental ability; (2) whether the
individual was intoxicated or under the influence of drugs;
(3) whether the individual was informed of [her] Miranda
rights; and (4) whether the individual was aware, through
prior experience, of the protections that the legal system
provides for suspected criminals. It is also important to
consider the environment in which an individual’s consent is
obtained, including (1) the length of the detention;
(2) whether the police used threats, physical intimidation, or
punishment to extract consent; (3) whether police made
promises or misrepresentations; (4) whether the individual
was in custody or under arrest when consent was given;
(5) whether consent was given in a public or in a secluded
location; and (6) whether the individual stood by silently or
objected to the search.”

United States v. Golinveaux, 611 F.3d 956, 959 (8th Cir. 2010) (citation

omitted).

There are several additional factors this court can consider when

determining whether consent is valid. “[L]imitations on the nature of the

crime under investigation and the objects sought by the search” can

minimize the seriousness of possessing drugs for personal use and may

subtly create a belief that there will be no consequences if the occupants

consent to a search. Reinier, 628 N.W.2d at 469. “These comments by

police constitute a subtle form of deception with no reasonable basis.”

Id. However, a suspect acknowledging there are drugs in the house—

thereby giving the officer probable cause to obtain a search warrant—

supports the contention that consent was voluntarily obtained. Id.; see

also 4 LaFave § 8.2(g), at 100. The court can also consider “knowledge
 22

by the defendant of the right to refuse to consent . . . [and] whether

police asserted any claim of authority to search prior to obtaining

consent.” Reinier, 628 N.W.2d at 465 (citations omitted).

Audsley’s consent was obtained after a “knock and talk” encounter

with the officers. The “knock and talk” procedure generally

involves officers knocking on the door of a house, identifying
themselves as officers, asking to talk to the occupant about a
criminal matter, and eventually requesting permission to
search the house. If successful, it allows police officers who
lack probable cause to gain access to a house and conduct a
search.

The “knock and talk” procedure has generally been
upheld as a consensual encounter and a valid means to
request consent to search a house.

Id. at 466 (citations omitted). The State carries the burden of proving

there was valid consent both to enter the home and to conduct the

search. Id. at 467. The consent of officers to enter the mobile home in

this case is not reasonably in dispute.

Turning to our analysis of the relevant factors relating to Audsley’s

consent, Audsley voluntarily allowed multiple police officers into her

home. She was twenty-eight years old, and there is nothing in the record

to show that she suffered from any mental abnormality or was otherwise

impaired by alcohol or drugs. The encounter with the police took place

“on the familiar surroundings of the threshold of [Audsley’s] home.” See

State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011). Also, Audsley clearly

knew she had the right to refuse consent to search because at all times

she refused to consent to a search of her entire mobile home. 7

7Though both parties presented evidence and made arguments regarding the

voluntariness of Audsley’s consent to search, neither party presented evidence on the
“knowing” and voluntary nature of her consent (requiring law enforcement to advise her
of her right to refuse consent to search). Audsley did not testify at the suppression
hearings. There is no direct evidence of her knowledge of her right to refuse consent to
a search. This is not surprising considering Lowe only claims that Audsley’s consent
 23

Although Audsley admitted smoking marijuana earlier that day,

there was no evidence she was too impaired to consent, and her

discussions with the officers do not indicate the contrary. The officers

were at Audsley’s residence because Cindy, her friend, was at the

hospital suffering from an overdose. Cindy had not told the doctors what

she took that day, but had indicated that, whatever the substance was,

she got it from Audsley. The officers reminded Audsley that if the

doctors knew everything that Cindy had taken, the doctors could treat

her more quickly. At that point, Audsley admitted she had been smoking

marijuana with her friend Cindy earlier that day and then asked the

officer, “Do you want it?” The officers then requested and received

consent to take possession of the fruit can and received further consent

to open the fruit can. Audsley did not testify at the suppression hearing.

Therefore, it is impossible to know whether Audsley admitted smoking

marijuana and allowed the police to examine it in order to help the police

determine what Cindy took in order to save Cindy’s life, or whether she

only consented to a search because her will had been overborne by the

officers. 8 Though a close question, we believe, based on the behavior of

the officers and the circumstances of the consent given, the former is a
more accurate portrayal of Audsley’s consent than the latter.

The questioning of Audsley was of a short duration, perhaps

twenty minutes. There is no evidence of threats or physical intimidation.

________________________________
was involuntary, not that it was given without the knowledge she could refuse.
Moreover, Lowe has not asked this court to adopt a knowing and voluntary requirement
under article I, section 8 of the Iowa Constitution. Without a full development of the
legal and factual arguments on this issue, we decline to adopt a new standard regarding
consent in this case.
8It is certainly possible that Audsley would risk being charged with a minor drug
possession offense in an effort to help the police determine what was causing her
friend’s health problems.
 24

The record does not disclose that the officers made any

misrepresentations regarding Cindy’s medical condition in order to

obtain Audsley’s consent to search the fruit can. 9 The police never

claimed they could search without Audsley’s consent. While officers did

ask for consent several times before the limited consent was granted, this

is just one of the factors which the court can rely on in determining

whether the ultimate search was voluntary. See United States v. Cedano-

Medina, 366 F.3d 682, 688 (8th Cir. 2004) (“[T]here is certainly no legal

rule that asking more than once for permission to search renders a

suspect’s consent involuntary, particularly where the suspect’s initial

response is ambiguous.” (citation and internal quotation marks omitted));

see also 4 LaFave § 8.2(f), at 97–100. Although we acknowledge prior

unreasonable searches can also be a factor in this analysis, we have

already concluded there was no prior misconduct by the police.

There are also factors that weigh against the voluntariness of

Audsley’s consent. One of the officers told Audsley, “The thing is, I don’t

give a shit about arresting you; I don’t give a shit about charging you,”

and that the doctors needed to know what Cindy took or “she might die

from it.” These statements are troubling. In Reinier, we noted:

The officers told Reinier prior to obtaining her consent
that they were not looking for small quantities of drugs but
“meth labs” and “major dealers.” These comments bear
upon the voluntariness of the consent because they are
limitations on the nature of the crime under investigation
and the objects sought by the search. The comments also
tend to minimize the seriousness of possessing drugs for
personal use or casual sales, and subtly create a false belief
that no adverse consequences will result from a search if
there is no meth lab in the house and the occupants are not

9The officers repeatedly reminded Audsley of Cindy’s medical condition as a way
of pressuring her to tell them what she knew. However, there is nothing in the record
to indicate that these claims were inaccurate.
 25
major dealers. These comments by police constitute a subtle
form of deception with no reasonable basis.

Reinier, 628 N.W.2d at 469 (citations omitted). Unlike in Reinier, the

officer made it clear that he was looking for small amounts of drugs that

would be used for personal use or casual sales. In that respect, he did

not “subtly create a false belief that no adverse consequences will result

from a search if there is no meth lab in the house and the occupants are

not major dealers.” Id.

He did, however, tell Audsley that he was not interested in
charging her. The officers indicated early on that they were interested in

searching the entire premises in order to determine what drugs Cindy

might have taken. This officer’s comment, much like the officer’s

comment in Reinier, “tend[ed] to minimize the seriousness of possessing

drugs for personal use or casual sales.” Id. As such, it was a “subtle

form of deception.” Id. However, the subtle use of deception to gain

consent to search is only one factor among many when evaluating the

totality of the circumstances to determine whether consent is voluntary.

Id. We will therefore consider Webb’s statement as one of many factors

in our analysis. 10

10Lowe has not claimed that the officer’s statement was a promise of leniency or

that such a promise might render Audsley’s consent involuntary, regardless of other
factors. Instead, Lowe makes a generalized attack under the totality of the
circumstances. Accordingly, we have limited our analysis to the challenges actually
made by Lowe.
This approach is consistent with our past cases. Reinier treated a statement
that minimized the consequences of possessing small amounts of drugs as one factor in
the analysis of whether consent to search was voluntary. On other occasions, we have
held that statements made in response to a promise of leniency are per se inadmissible.
See State v. Kase, 344 N.W.2d 223, 225–26 (Iowa 1984). Evidence improperly obtained
in violation of the Fourth Amendment is excluded from the trial under the exclusionary
rule in an effort to deter police misconduct, “to provide a remedy for a constitutional
violation[,] and to protect the integrity of the judiciary.” Lane, 726 N.W.2d at 392; see
also State v. Cline, 617 N.W.2d 277, 289 (Iowa 2000), abrogated on other grounds by
State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). On the other hand, “[s]tatements
exacted by promissory leniency are not excluded on prophylactic grounds to deter police
 26

While presenting a close case, in our review of the totality of the

circumstances, we conclude that Audsley’s consent to search the can of

fruit was voluntary. 11

We now turn to the issue of whether Audsley’s consent to search

the fruit can is binding on Lowe.

C. The Impact of Audsley’s Consent on Lowe. We have long

held that a guest without exclusive possession of an area assumes the

risk that his host will allow others into the common areas. State v.

Knutson, 234 N.W.2d 105, 107 (Iowa 1975). Additionally, a cohabitant

assumes the risk that other cohabitants will consent to searches of

shared living areas. Id. (citing United States v. Matlock, 415 U.S. 164,

171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249–50 (1974)). If a person

with authority grants consent to search shared areas, that authority is

binding as to all other people who share the area. State v. Bakker, 262

N.W.2d 538, 546 (Iowa 1978).

Authority to consent includes not only actual, but also apparent,

authority. Illinois v. Rodriguez, 497 U.S. 177, 185–87, 110 S. Ct. 2793,

2799–2801, 111 L. Ed. 2d 148, 159–60 (1990). Apparent authority will

________________________________
misconduct; they are excluded on grounds that statements exacted under such
circumstances are unreliable.” Kase, 344 N.W.2d at 226. When a statement is made in
response to a promise of leniency, the statement’s “probative value, if any exists, is
substantially outweighed by the danger of confusion of issues and would be misleading
to the jury under Iowa rule of evidence 403.” State v. McCoy, 692 N.W.2d 6, 28 (Iowa
2005) (citation and internal quotation marks omitted). When reviewing a suspect’s
consent to search the totality-of-the-circumstances test is used, and under that test,
whether an officer has minimized the seriousness of possessing drugs is one factor
among many that the court must consider.
11We recently decided the case of State v. Pals, 805 N.W.2d 767 (Iowa 2011).
While on its face it may appear that the decision we make today is inconsistent with our
decision in Pals, the cases are clearly distinguishable. Pals involved the “inherently
coercive” setting of a traffic stop where “Pals found himself seized in the front seat of a
squad car with his own vehicle parked on the side of the public highway.” Id. at 782–
83. We noted the difference between a request for consent during a traffic stop and “an
encounter on the familiar surroundings of the threshold of one’s home.” Id. at 782.
 27

validate a search where officials “enter without a warrant because they

reasonably (though erroneously) believe that the person who has

consented to their entry” had the authority to do so. Id. at 186, 110 S.

Ct. at 2800, 111 L. Ed. 2d at 160. We apply an objective standard when

analyzing consent and ask “would the facts available to the officer at the

moment . . . warrant a [person] of reasonable caution in the belief that

the consenting party had authority over the premises?” Id. at 188, 110

S. Ct. at 2801, 111 L. Ed. 2d at 161 (citations and internal quotation

marks omitted) (alteration in original).

The United States Supreme Court has recently announced a

narrow exception to the rule that a cotenant’s consent is binding on

other cotenants. Under the Fourth Amendment, “a physically present

co-occupant’s stated refusal to permit entry prevails, rendering the

warrantless search unreasonable and invalid as to him.” Randolph, 547

U.S. at 106, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. Even under this

rule, however, the police can only accord “dispositive weight to the fellow

occupant’s contrary indication when he expresses it.” Id. at 121–22, 126

S. Ct. at 1527, 164 L. Ed. 2d at 227 (emphasis added). The only possible

way in which a co-occupant could successfully invoke this protection

without being physically present and objecting would be if the police

have “removed the potentially objecting tenant from the entrance for the

sake of avoiding a possible objection.” Id. at 121, 126 S. Ct. at 1527, 164

L. Ed. 2d at 226–27.

Audsley owned the mobile home where police initially obtained her

consent to enter. Additionally, the fruit can with the marijuana was

found in the common area of the mobile home sitting out on the table.

Not surprisingly, Lowe has not claimed that he was the exclusive owner

of the fruit can. Since the fruit can was located in the living room of her
 28

home, Audsley had the actual and apparent authority to consent to a

search of it. There is no claim that any part of the mobile home was

exclusively Lowe’s. Therefore, any areas of the mobile home where Lowe

could claim an expectation of privacy would be shared areas, and he

would have to expect Audsley could consent to searches of those areas.

Cf. Fleming, 790 N.W.2d at 565–67. Most importantly, despite being

present in the mobile home for all but a few minutes, Lowe never

objected to the entry by the police or the search of the fruit can. Further,

the record evidence in this case does not support a conclusion that Lowe

was removed from the premises for the improper purpose of his possible

objection to the entry by officers or the search of the fruit can. Lowe was

not “removed” by the police. He was asked to step outside, which he

willingly did. The police did not ask for consent to pick up or open the

fruit can until after Lowe had reentered the residence.

Lowe asks for a more expansive definition of “physically present” in

the Randolph analysis under the Iowa Constitution. A more expansive

definition would not change our analysis. Lowe’s claim under Randolph

fails because he failed to object, not because he was not “present.”

Lowe also asks this court to declare that article I, section 8 of the

Iowa Constitution requires the police obtain affirmative consent from all

physically present cotenants, as opposed to merely honoring their

affirmative objections. Randolph does not require this affirmative step.

In Randolph, the Court acknowledged “it is fair to say that a caller

standing at the door of shared premises would have no confidence that

one occupant’s invitation was a sufficiently good reason to enter when a

fellow tenant stood there saying, ‘stay out.’ ” Randolph, 547 U.S. at 113,

126 S. Ct. at 1522–23, 164 L. Ed. 2d at 221. The police should also be

required to follow this social norm:
 29
Since the co-tenant wishing to open the door to a third
party has no recognized authority in law or social practice to
prevail over a present and objecting co-tenant, his disputed
invitation, without more, gives a police officer no better claim
to reasonableness in entering than the officer would have in
the absence of any consent at all.

Id. at 114, 126 S. Ct. at 1523, 164 L. Ed. 2d at 222.

The Supreme Court clearly noted it would only “afford[] dispositive

weight to the fellow occupant’s contrary indication when he expresses it.”

Id. at 121–22, 126 S. Ct. at 1527, 164 L. Ed. 2d at 227. The reason for

requiring a cotenant to actually voice his objection was that an

alternative rule “requir[ing] the police to take affirmative steps to find a

potentially objecting co-tenant before acting on the permission they had

already received” would “needlessly limit the capacity of the police to

respond to ostensibly legitimate opportunities in the field.” Id. Lowe has

not provided us with any reason to interpret the Iowa Constitution any

differently. Just as the United States Supreme Court refused to require

the police to find every potential cotenant who may wish to object to the

search and obtain their consent, we will not require the police to obtain

the affirmative assent of every present cotenant prior to conducting a

search.

Nothing in this record would support the conclusion that Lowe was

removed from the premises to prevent him from objecting to the search.

Audsley had the authority to consent to the entry by police and the
limited search of the fruit can on the coffee table. Lowe was physically

present at the time, but did not object to the entry by police or the search

of the fruit can. Because Lowe did not object, Audsley’s consent to

search is valid as to Lowe, and allowing the evidence found to be used

against him does not violate Lowe’s rights under either the federal or

state constitutions.
 30

D. Conclusion. Audsley validly consented to a search of a

common area in the mobile home she owned. The record evidence in this

case does not support the conclusion Lowe was removed by the police to

prevent his objection to the search. Lowe never objected to the search

even though he was physically present when the consent to search the

fruit can was given. The search of the fruit can with the false bottom

was valid.

Lowe also attempts to attack the search warrant that led to the

discovery of the other physical evidence the State seeks to use against

him. This is based on the claim that the marijuana which formed the

probable cause for the search warrant was the product of illegal police

action or involuntary consent. The parties agree, and the district court

found, that the marijuana found as a result of that search did in fact

supply the probable cause that supported the warrant application. Since

the consent that led to the discovery of the marijuana was not based on

any prior illegal police action, and Audsley’s consent was voluntary, any

attack on the search warrant is without merit. The warrant was properly

obtained, and therefore the physical evidence seized as a result of that

warrant is admissible against Lowe.
IV. Lowe’s Statements to Jenkins Following Lowe’s Request
for an Attorney.
Upon his arrival with the search warrant, Jenkins read Audsley

and Lowe their Miranda warnings. Lowe immediately requested an

attorney, and he was placed in a squad car while the search of the

residence continued. Once officers discovered what they believed to be

components of a meth lab in the bathroom, Jenkins approached Lowe

and asked if there was any anhydrous ammonia or other dangerous

substances on the property. In response to the State’s arguments on
 31

discretionary review regarding the promise of leniency issue, Lowe

contends this reinitiation of questioning violated his Fifth Amendment

right to counsel. 12 The State does not dispute that Lowe was subjected

to a custodial interrogation or that Lowe had affirmatively invoked his

right to counsel, when Jenkins began to question Lowe regarding the

presence of anhydrous ammonia on the property. The State contends

Jenkins’s questions fall under the public safety exception to the Miranda

warnings.

After receiving the Miranda warnings, a suspect may waive his

rights and respond to interrogation, or a suspect can request counsel.

Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed.

2d 378, 385 (1981). “Under the Federal Constitution, the authorities

must follow different procedural safeguards to re-interrogate a suspect

depending on whether the suspect has invoked his or her right to remain

silent or the right to the presence of counsel.” Palmer, 791 N.W.2d at

848. In Edwards, the Court established a clear, bright-line rule: If the

suspect requests counsel, all interrogation must cease until the detainee

is provided with an attorney or “the accused himself initiates further

communication, exchanges, or conversations with the police.” Edwards,

451 U.S. at 484–85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386; see also

12The State claims the issue of the Miranda violation is not properly before the

court because Lowe did not file a cross-application for discretionary review of the
district court’s determination that the public safety exception was applicable in this
case. The district court ultimately suppressed the statements based on the promissory
leniency argument. We have stated that “we will uphold a ruling of the court on the
admissibility of evidence on any ground appearing in the record, whether urged below
or not.” State v. McCowen, 297 N.W.2d 226, 227 (Iowa 1980); see also State v. Parker,
747 N.W.2d 196, 208 (Iowa 2008). In this case, the issue was actually argued in front
of the district court, which heard testimony from the officers at the scene regarding the
potential dangers facing the officers and the reasons for reinitiating interrogation. The
record contains more than sufficient evidence for us to rule on the public-safety-
exception issue, and it is properly before us.
 32

Palmer, 791 N.W.2d at 848 (“[T]he Court in Edwards adopted a per se

ban on any further questioning of a suspect without the presence of

counsel, for an indefinite duration, after the suspect invokes the right to

counsel.”). The Court reasoned that invoking the right to counsel is a

“significant event” and once an accused has requested an attorney, he

has an “ ‘undisputed right’ under Miranda to remain silent and to be free

of interrogation.” Edwards, 451 U.S. at 485, 101 S. Ct. at 1885, 68 L.

Ed. 2d at 386–87 (citation omitted).

The State does not dispute that Lowe requested an attorney.

Instead, the State seeks to extend the “public safety exception” to the

Miranda requirements to situations like the one here, where the accused

has requested an attorney and the police subsequently reinitiate

questioning. We have not previously decided whether the public safety

exception applies after the Miranda protections have been invoked.

The public safety exception to the Miranda warnings was first

announced in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L.

Ed. 2d 550 (1984), and has since been adopted in Iowa. See State v.

Deases, 518 N.W.2d 784, 791 (Iowa 1994). Under the public safety

exception, when “police officers ask questions reasonably prompted by a

concern for the public safety,” without first giving suspects Miranda

warnings, the responses those questions elicit do not violate Miranda.

Quarles, 467 U.S. at 656, 104 S. Ct. at 2631–32, 81 L. Ed. 2d at 557.

The justification given for the rule is straightforward: “[T]he need for

answers to questions in a situation posing a threat to the public safety

outweighs the need for the prophylactic rule protecting the Fifth

Amendment’s privilege against self-incrimination.” Id. at 657, 104 S. Ct.

at 2632, 81 L. Ed. 2d at 558. In ordinary interrogations, the Court

reasoned, Miranda warnings are procedural safeguards which make a
 33

suspect less likely to divulge information, and their primary “social cost”

is fewer convictions. Id. at 656–57, 104 S. Ct. at 2632, 81 L. Ed. 2d at

557. In the public safety situation, however, “the cost would have been

something more than merely the failure to obtain evidence.” Id. at 657,

104 S. Ct. at 2632, 81 L. Ed. 2d at 558. The cost in these situations

would be increasing the risk of harm to the public. Id.

We have noted that the public safety exception is closely drawn

and narrow in scope. In re J.D.F., 553 N.W.2d 585, 588 (Iowa 1996); see

also Quarles, 467 U.S. at 658, 104 S. Ct. at 2632, 81 L. Ed. 2d at 558.

For the exception to apply, there must be a threat to public safety and an

“immediate necessity” for the information the officer seeks to obtain by

questioning a suspect in violation of Miranda. Quarles, 467 U.S. at 657,

104 S. Ct. at 2632, 81 L. Ed. 2d at 557. The exception will only apply in

situations where there is “sufficient exigency to justify the questioning.”

In re J.D.F., 553 N.W.2d at 588. A missing gun in a field creates

“sufficient exigency” to justify pre-Miranda questioning. Id. at 587–88.

The exception also applies to the discovery of an active

methamphetamine lab. State v. Simmons, 714 N.W.2d 264, 275 (Iowa

2006).

In Simmons, officers could smell anhydrous ammonia from outside

the door of an apartment. Id. at 269. After requesting permission to

enter the apartment and receiving no response, officers forced the door

open. Id. Once the door was open, the smell of anhydrous ammonia was

strong enough to make one officer’s eyes water. Id. Without reciting

Miranda warnings, the officers asked the defendant whether there was an

active meth lab in the apartment, and the defendant said there was. Id.

at 269–70. The officers then evacuated the residents of the apartment
 34

across the hall, immediately called dispatch, and did not reenter the area

without protective gear. Id. at 270. We held

[the officer’s] inquiries as to the presence and status of a
methamphetamine lab were for the purpose of obtaining
information that would help him safely address the
potentially volatile and dangerous situation confronting the
officers at the scene, and not solely to obtain incriminating
information from [the defendant].

Id. at 275. Particularly, we noted the strong odor of anhydrous ammonia

in the apartment. Id. The odor itself posed a safety risk to the officers

and the neighbors, and that risk justified the officers’ failure to recite the

Miranda warnings prior to questioning the defendant about the presence

and nature of a meth lab. Id. These circumstances demonstrated

sufficient exigency for the public safety exception to apply.

In this case, the officers had been in Audsley’s mobile home for

nearly five hours before officers found inactive components of a meth lab

and Jenkins reinitiated questioning of Lowe. During that time, the

officers did not report any odor of anhydrous ammonia or ether, nor did

they report any physical effects such as watering eyes. Jenkins only

reinitiated questioning after components of a meth lab were discovered,

but he did not order the other officers out of the mobile home or evacuate

the surrounding residences. Jenkins testified that there was material in

one of the bedrooms that smelled of anhydrous ammonia, but this

material had not been located at the time Jenkins reinitiated

questioning. Jenkins also testified Lowe told him that he was not

actively manufacturing methamphetamine in the mobile home at the

time of the search. Audsley confirmed that Lowe had manufactured

methamphetamine in the past, but she had told him he could not do it in

the house. The only basis for the reinitiation of interrogation was the

discovery of the inactive components of a meth lab in the bathroom.
 35

The discovery of inactive components of a meth lab does not

provide sufficient exigency to justify a public safety exception to the

requirements of Miranda and its progeny. Unlike the officers in

Simmons, where the exception was applicable, Jenkins was not

confronted with an active methamphetamine lab. None of the officers in

Audsley’s mobile home reported any odors of anhydrous ammonia or

ether. There was no evidence that the active “cooking” of meth was

taking place. Additionally, Jenkins did not feel the threat was severe

enough to evacuate Audsley and his fellow officers, or to warn nearby

residents and remove them from the potentially dangerous area. Under

these facts, we cannot conclude there was sufficient exigency for the

public safety exception to apply.

Once a suspect requests an attorney, all interrogation must cease.

Edwards, 451 U.S. at 484–85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386–

87; see also Palmer, 791 N.W.2d at 847–48. Jenkins reinitiated

questioning prior to Lowe speaking with an attorney. Because the State

has not shown sufficient exigency to invoke the public safety exception,

the statements made by Lowe after he requested counsel were taken in

violation of Miranda and Edwards. Because there was insufficient

exigency to invoke the public safety exception in this case, we need not

determine whether the public safety exception could ever apply in a

situation where the suspect had already requested an attorney. Under

the facts and circumstances of this case, and based upon our prior

precedent, we hold that there is insufficient exigency to justify the

officer’s departure from the Miranda requirements. Since the statements

are suppressed on this basis, we need not address the issue of

promissory leniency.
 36

V. Disposition.

The police did not violate Lowe’s federal or state constitutional

rights when they searched the fruit can on the coffee table in Audsley’s

living room. Audsley’s consent was not the result of prior illegal police

action and therefore the evidence is not “fruit of the poisonous tree,” nor

was her consent involuntary under the totality of the circumstances that

existed in this case. Additionally, despite being physically present, Lowe

never objected to the entry of the police or the search of the fruit can. As

such, the trial court was correct in denying the motion to suppress the

physical evidence obtained pursuant to the consent and the search

warrant. Also, when the police reinitiated questioning of Lowe after he

requested an attorney, they violated his constitutional rights under

Miranda. Accordingly, those statements were properly suppressed. On

discretionary review from the district court’s ruling granting the motion

to suppress the statements, the ruling on the motion to suppress is

affirmed. On cross-application for discretionary review, the district

court’s ruling denying the motion to suppress the physical evidence

obtained based on the alleged violation of the United States and Iowa

Constitutions is affirmed.

DECISION OF THE DISTRICT COURT AFFIRMED ON APPEAL;

DECISION OF THE DISTRICT COURT AFFIRMED ON CROSS-APPEAL

AND CASE REMANDED.

Cady, C.J., concurs; Appel, Wiggins, and Hecht, JJ., concur in part

and dissent in part; and Waterman and Mansfield, JJ., concur specially.
 37

#10–1454, State v. Lowe

WATERMAN, Justice (concurring specially).

I concur in the result and in all aspects of the well-reasoned

majority opinion, except for its blessing of the language in State v. Pals,

805 N.W.2d 767, 783 (Iowa 2011), characterizing traffic stops as an

“inherently coercive” setting for determining whether a citizen’s consent

to the search of his vehicle is voluntary. Pals was wrongly decided for

the reasons set forth in my dissenting opinion in that case. See Pals,

805 N.W.2d at 788 (Waterman, J., dissenting) (noting the “ ‘temporary

and relatively nonthreatening detention involved in a traffic stop’ ”

(quoting Maryland v. Shatzer, 599 U.S. ___, ___, 130 S. Ct. 1213, 1224,

175 L. Ed. 2d 1045, 1058 (2010))). Today’s majority correctly applies our

precedent and Federal Fourth Amendment precedent to uphold Audsley’s

consent to search as voluntary.

I would like to respond to my dissenting colleagues. The dissent

thinks it “indisputable” that Howard, Reinier, and Randolph,

“collectively,” require invalidation of the consent search under article I,

section 8 of the Iowa Constitution. This is surprising because none of

those cases was decided under a separate analysis of Iowa constitutional

law. 13

Moreover, each of those cases is distinguishable. In State v.

Howard, the officer told the defendant that “he was only interested in

retrieving the [stolen] property and that if Howard turned it over to the

authorities, he would not be prosecuted.” 509 N.W.2d 764, 766 (Iowa

1993). That is quite different from the circumstances surrounding

13Reinier invalidated the search under both the Fourth Amendment and the Iowa

Constitution, but its analysis was based on Fourth Amendment precedent and there
was no separate consideration of the Iowa Constitution. State v. Reinier, 628 N.W.2d
460, 464, 469 (Iowa 2001).
 38

Audsley’s consent to search. No promise of leniency was made to her.

State v. Reinier is closer to being on point, as the majority opinion

acknowledges, but is still readily distinguishable because the police both

“asserted authority to search” and engaged in “deception with no

reasonable basis.” 628 N.W.2d 460, 468–69 (Iowa 2001). Here, neither

of those factors is present. The police did not state or imply they could

search without consent; rather, they asked Audsley whether they could

search, and she initially told them no, but later handed them the

Del Monte fruit can with the marijuana and pipe. There is also no

indication any misrepresentation was made to Audsley. To the contrary,

no one disputed the officer told Audsley the truth when he said her

friend (who Audsley admitted smoked marijuana with her earlier that

day) was in a medical emergency due to a drug overdose. Finally,

Georgia v. Randolph draws a “line” that the consent of the only cotenant

who is present is valid “[s]o long as there is no evidence that the police

have removed the potentially objecting tenant from the entrance for the

sake of avoiding a possible objection.” 547 U.S. 103, 121, 126 S. Ct.

1515, 1527, 164 L. Ed. 2d 208, 226–27 (2006). As the majority notes

and the dissent does not dispute, there is nothing in the record to

suggest the police removed Lowe to forestall his objection to a search.

In short, I do not think Howard, Reinier, and Randolph can be

fairly read, even “collectively,” to require invalidation of the initial search

in this case. As in Pals, the problem here is not that the existing Fourth

Amendment search and seizure precedents are unclear. The problem is

that members of this court believe those precedents lead to an unjust

result and therefore want to chart a different path under the Iowa

Constitution.
 39

The dissent then moves to its real point, which is that we should

adopt a rule under the Iowa Constitution requiring police to advise

occupants of their right to refuse a search. The dissent claims this

would provide a “much clearer rule.” I have my doubts. The dissent’s

proposed rule works only in one direction: If the advice was not given,

then the search is invalid. If it was given, the search could still be

invalid if the consent is shown to be involuntary for some other reason.

See Reinier, 628 N.W.2d at 469 (consent found to be involuntary based

on police conduct and statements even though defendant read and

signed written consent form). I am not sure the dissent’s one-way rule

provides much clarity. To the contrary, the dissent’s seductive allure of

promised new clarity in determining the validity of residential consent

searches must be weighed against the significant uncertainty inevitably

resulting from the break with Iowa and federal search and seizure

precedent and the lack of clarity over how far the new advance warning

requirement would be extended in future cases.

Yet another problem with the dissent’s approach is its disconnect

from the present case. In the dissent’s view, a consent to search is

automatically “involuntary” unless the person was told he or she had a

right to refuse the search. But in this case, Audsley unquestionably

knew she had that right. She indicated to the police she would not

consent to a search of her premises; those requests were consistently

honored. She did at one point retrieve the fruit can, hand it to the police,

and agree that they could open it; but there is no doubt on this record

she knew she had the right not to do so. She then refused to consent to

a broader search of the premises. If the search here is to be deemed

“involuntary,” the reason cannot be Audsley’s ignorance of her legal
 40

rights. Thus, the dissent would construct a rule to address an issue that

is not even presented by this case. 14

In any event, I would be very hesitant to throw aside decades of

precedent and create another discrepancy between Fourth Amendment

law and how the identically worded article I, section 8 of the Iowa

Constitution is interpreted. See Reinier, 628 N.W.2d at 464 (stating that

the “same fundamental right of privacy is found” in the Fourth

Amendment and article I, section 8 of the Iowa Constitution). The

dissent says that consent forms are practical to use and would not

significantly affect law enforcement. It would be nice if law enforcement

could weigh in on this subject. 15 They could if the consent requirement

were adopted legislatively, rather than as a new-found interpretation of

the Iowa Constitution. Because we are talking about changing the law to

make it more “practical,” this strikes me as an argument that should be

directed in the first instance to the legislature. The dissent cites Welch v.

Iowa Department of Transportation, but it is important to recognize that

Welch involved adherence to a long-standing bright-line rule of statutory

interpretation, as opposed to overturning long-standing constitutional

precedent. 801 N.W.2d 590, 592 (Iowa 2011). And merely because prior
warnings on written consent forms offer benefits and are currently in use

by some law enforcement agencies does not mean we should reinterpret

our state constitution to require them hereafter.

14The dissent accuses me of trying to send a “message” that repeated police
pressure on a person who initially refuses a search but ultimately succumbs to the
pressure renders the search valid. Not at all. All I am saying is (a) the pressure in this
case was not such as to render Audsley’s consent involuntary, and (b) it makes no
sense to adopt a new rule requiring police to tell persons they have a right to refuse a
search in a case in which the individual’s knowledge of that right was not at issue.
not even the parties have weighed in on the subject because no one
15Here,

argued here—or below—for the mandatory warning approach proposed by the dissent.
 41

The dissent presents no persuasive reason to overturn our own

precedent under both the Fourth Amendment and article I, section 8 of

the Iowa Constitution holding prior warnings are not required for consent

searches. See State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004) (“An

individual’s response [to police requests to search] is considered

consensual, even though the person has not been advised that he is free

to refuse to respond.” (citing United States v. Drayton, 536 U.S. 194,

203, 122 S. Ct. 2105, 2112, 153 L. Ed. 2d 242, 253 (2002))). The only

caselaw cited by the dissent in support of its proposed sea change in

search and seizure law are the decisions of just four other state supreme

courts. Those decisions are outliers.

The overwhelming majority of state appellate courts analyzing

consent search issues on independent state constitutional grounds

follows the federal approach and rejects a requirement that police advise

suspects they can decline requests for permission to search. See, e.g.,

State v. Flores, 185 P.3d 1067, 1071 (N.M. Ct. App. 2008) (“Every other

state court that has been asked to adopt the Ferrier rule as a matter of

state constitutional law has rejected it.”) (collecting knock-and-talk

cases); Commonwealth v. Cleckley, 738 A.2d 427, 432 (Pa. 1999) (“Those

states that have addressed this issue, however, have, for the most part,

rejected the notion that knowledge of one’s right to refuse consent to a

warrantless search is required under the applicable state constitution,

opting instead to follow the federal voluntariness standard which focuses

on the totality of the circumstances as opposed to any one factor.”)

(collecting other cases).

The dissent fails to note that the leading case of its minority of

four, State v. Ferrier, was expressly based on a unique state

constitutional provision stating, “No person shall be disturbed in his
 42

private affairs, or his home invaded, without authority of law.” 960 P.2d

927, 930 (Wash. 1998) (quoting Wash. Const. art. I, § 7). As the Ferrier

court confirmed, “This provision differs from the Fourth Amendment in

that, ‘[u]nlike the Fourth Amendment, Const. art. I, § 7 “clearly

recognizes an individual’s right to privacy with no express limitations.” ’ ”

Id. (quoting State v. Young, 867 P.2d 593, 596 (Wash. 1994)). By

contrast, the Iowa search and seizure provision and the Fourth

Amendment are worded identically.

Nevertheless, a sharply divided Arkansas Supreme Court relied on

Ferrier in adopting a warning requirement under its state constitution in

State v. Brown. 156 S.W.3d 722, 731 (Ark. 2004). The dissenting

opinion begins, “Today, a 4–3 divided court issues an opinion that makes

a radical change in Arkansas search and seizure law. The decision is

clearly contrary to prior law and the change is totally unwarranted and

unnecessary.” Id. at 732 (Glaze, J., dissenting). Justice Glaze’s

observation would be equally true for Iowa if today’s dissent had one

more vote in this case.

My colleagues’ dissent cites “values underlying article I, section 8,”

but those values are the same values that underlie the Fourth

Amendment and all other state constitutional search and seizure

provisions. None of those values are new; none of the dissent’s

arguments are new. Do today’s dissenters understand those values

better than the Justices of the United States Supreme Court, the justices

of the great majority of state supreme courts, and our own predecessors

on this court who have declined to hold that a consent to search is

automatically invalid unless the individual was expressly told he or she

had a right to refuse consent? Where others have looked at the same
 43

“values” for so long and generally come to a different conclusion, I would

be hesitant to substitute my assessment of “values” so quickly.

Notwithstanding the dissent’s references to “special protection of

the home,” the dissent also implies that its requirement of a prior

warning of a right to refuse should apply to vehicle searches. The

dissent criticizes the reasoning in the Pals majority opinion that one of

the dissenters wrote just three months ago. And logically speaking, there

is no reason why the dissent’s requirement of a prior warning should not

apply to searches of the person. Or, for that matter, to noncustodial

interrogations that yield confessions which in the dissent’s new world

would be inadmissible without prior warnings. I would not go there.

Mansfield, J., joins this special concurrence.
 44

#10–1454, State v. Lowe

APPEL, Justice (concurring in part and dissenting in part).

I readily concur in the majority’s discussion of exigent

circumstances. I dissent, however, on the issue of consent to search.

Certainly we all recognize that the home is entitled to special

protection under the Fourth Amendment. This special protection of the

home has been repeatedly emphasized by the United States Supreme

Court and by this court. Protection of the home is wired into the Fourth

Amendment; article I, section 8 of the Iowa Constitution; and in the DNA

of judges who believe the constitutional provisions regulating search and

seizure have meaning.

For instance, in Boyd v. United States, 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), the Court emphasized that constitutional

search and seizure principles apply

to all invasions on the part of the government and its
employees of the sanctity of a man’s home and the privacies
of life. It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the essence of
the offense; but it is the invasion of his indefeasible right of
personal security, personal liberty, and private property . . . .

And then in Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct.

341, 344, 58 L. Ed. 652, 656 (1914), overruled in part on other grounds

by Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S. Ct. 1684, 1691, 6

L. Ed. 2d 1081, 1089–90 (1961), the court said:

If letters and private documents [could] . . . be [unlawfully]
seized [from a home without a warrant] and used in evidence
against a citizen accused of an offense, the protection of the
[Fourth] Amendment, declaring his right to be secure against
such searches and seizures, is of no value, and . . . might as
well be stricken from the Constitution.
 45

Similarly, in Johnson v. United States, 333 U.S. 10, 13–14, 68

S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948), the Supreme Court, in

Justice Jackson’s famous words, declared:

The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists
in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime. Any assumption that evidence sufficient to support a
magistrate’s disinterested determination to issue a search
warrant will justify the officers in making a search without a
warrant would reduce the Amendment to a nullity and leave
the people’s homes secure only in the discretion of police
officers.

While the current United States Supreme Court has dramatically

scaled back Fourth Amendment protections, it has repeatedly

emphasized the sanctity of the home as being at the core of Fourth

Amendment protections. For example, in United States v. Karo, 468 U.S.

705, 717, 104 S. Ct. 3296, 3304, 82 L. Ed. 2d 530, 542 (1984), the Court

held that a search warrant is required when an electronic monitor is
placed in a drum outside of the home, but is subsequently carried into

the home. In Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,

1388, 63 L. Ed. 2d 639, 661 (1980), the Court held that an arrest

warrant is required to enter the home of an occupant. In Kyllo v. United

States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046, 150 L. Ed. 2d 94, 106

(2001), the Court held that a warrant is required to use a device not in

general public use that measures heat within the home even when there

is no physical intrusion.

The sanctity of the home was an underpinning of this court’s

recent opinion in State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). In Ochoa,

we stated, “The home plays a central role in a person’s life, providing
 46

sanctuary, comfort, seclusion, security, and identity.” Ochoa, 792

N.W.2d at 289. We observed the Iowa framers “clearly endorsed” the

notion of the sanctity of the home, and we explained our caselaw has

historically “reflected considerable solicitude to the sanctity of the home.”

Id. at 275, 285. We further emphasized that “[i]nvasions of the home by

government officials cannot be regarded as constitutionally insignificant.”

Id. at 289.

The need to guard against invasions of the home has been long

recognized in the knock-and-talk context. Felix Frankfurter once wrote

to Chief Justice Warren in connection with search and seizure law that

“[t]o the extent that I am charged, not by you, with being ‘a nut’ on the

subject of the ‘knock at the door,’ I am ready to plead guilty.” Bernard

Schwartz, Super Chief: Earl Warren and His Supreme Court—A Judicial

Biography 266 (1983). Not surprisingly, there is considerable caselaw

and academic commentary cautioning about use of the knock-and-talk

procedure to evade the warrant requirement ordinarily required before

police may search a home.

For example, in Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App.

2003), the court noted, “While not per se unlawful, the knock and talk

procedure ‘pushes the envelope’ and can easily be misused.” Similarly,

in United States v. Johnson, 170 F.3d 708, 721 (7th Cir. 1999) (Evans, J.,

concurring), it was observed that “the seeds of this bad search were sown

when the police decided to use the ‘knock and talk’ technique.” Justice

Stevens, in his concurring opinion in Georgia v. Randolph, 547 U.S. 103,

124, 126 S. Ct. 1515, 1528–29, 164 L. Ed. 2d 208, 228 (2006) (Stevens,

J., concurring), suggested that there is a need for a tightened

voluntariness standard in connection with knock and talks.
 47

A number of courts have suggested police must have at least

reasonable suspicion before a knock-and-talk procedure may be

implemented. See, e.g., United States v. Jones, 239 F.3d 716, 720–21

(5th Cir. 2001); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.

1991). Some commentators have suggested the requirement of

reasonable suspicion does not go far enough. See, e.g., Craig M. Bradley,

“Knock and Talk” and the Fourth Amendment, 84 Ind. L.J. 1099, 1117

(2009) [hereinafter Bradley]. Although the issue of reasonable suspicion

is not an issue in this case, these authorities cited above demonstrate

the sensitivity of courts in considering the invasion of privacy interests

inherent in the knock-and-talk procedure.

Academics have cautioned that knock-and-talk methods may

render the search warrant requirement nugatory. See, e.g., Bradley, 84

Ind. L.J. at 1099. These commentators often favor a requirement of a

knowing and intentional waiver in order to promote the sanctity of the

home and defend the ordinary requirements of probable cause and a

judicial warrant before a home may be searched. Id. at 1127.

With this background, we now turn to the issue of consent in the

present case. In State v. Pals, 805 N.W.2d 767 (Iowa 2011), this court

determined that an automobile search was invalid under article I, section

8 of the Iowa Constitution. We noted weaknesses in the federal court

application of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041,

36 L. Ed. 2d 854 (1973). Pals, 805 N.W.2d at 779–82. While we reserved

the issue of whether to adopt a more demanding “knowing and voluntary

waiver test” under Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82

L. Ed. 1461 (1938), for another day, we held that any application of a

totality-of-the-circumstances test to determine whether consent was

voluntary must be done with rigor to promote the constitutional values
 48

underlying article I, section 8. Pals, 805 N.W.2d at 782. Although we

are confronted with a different factual scenario in this case, applying the

more rigorous totality-of-the-circumstances test described in Pals leads

to the conclusion that the consent in this case should be considered

involuntary.

First, I begin with recognition that this case involves a search of

the home. One of the abuses that gave rise to the Fourth Amendment

was the abuse caused by the King’s agents through dragnet searches of

homes without probable cause which were purportedly authorized by

general warrants and writs of assistance. In light of the history, and the

wording of the Fourth Amendment itself, protection of the home from

generalized searches not supported by probable cause has long been

considered at the core of search and seizure law. See Johnson, 333 U.S.

at 14, 68 S. Ct. at 369, 92 L. Ed. at 440; Boyd, 116 U.S. at 630, 6 S. Ct.

at 532, 29 L. Ed. at 751; see also Kyllo, 533 U.S. at 40, 121 S. Ct. at

2046, 150 L. Ed. 2d at 106; Karo, 468 U.S. at 716–17, 104 S. Ct. at

3304, 82 L. Ed. 2d at 542; Payton, 445 U.S. at 603, 100 S. Ct. at 1388,

63 L. Ed. 2d at 661. Our cases recognize the sanctity of the home in the

Iowa constitutional tradition as well. See, e.g., Ochoa, 792 N.W.2d at

274–75; State v. Sheridan, 121 Iowa 164, 167, 96 N.W. 730, 731 (1903).

Most recently, in Ochoa, we built on earlier state precedent, which noted

that “the right of officers to thrust themselves into the home is a matter

of ‘grave concern.’ ” Id. (quoting State v. Brant, 260 Iowa 758, 763, 150

N.W.2d 621, 625 (1967)).

In short, there is ample support for the common sense notion that

we should be especially solicitous of the privacy interest in a person’s

home in considering search and seizure questions under article I, section

8 of the Iowa Constitution. The centrality of the home in search and
 49

seizure law dictates that we engage in a searching analysis before we

conclude that the constitutional right to privacy in the home has been

waived in the knock-and-talk context. “[T]he closer officers come to

intrusion into a dwelling, the greater the constitutional protection.” State

v. Ferrier, 960 P.2d 927, 931 (Wash. 1998) (citation and internal

quotation marks omitted); see also State v. Brown, 156 S.W.3d 722, 731

(Ark. 2004) (fundamental interest in the home requires that any violation

requires strict scrutiny and compelling state interest). Therefore, in the

knock-and-talk context we should take seriously the notion that

“physical entry of the home is the chief evil against which the wording of

the Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407

U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972).

Second, I think it obvious that knock and talks have an element of

inherent coercion. 16 I note the admonition of Caleb Foote many years

ago that “what on their face are merely words of request take on color

from the officer’s uniform, badge, gun, and demeanor.” Caleb Foote, The

Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J.

Crim. L. & Criminology 402, 403 (1960). It has more recently been

observed that “[i]t is inherently improbable that criminal suspects
voluntarily would consent to the discovery of the very evidence necessary

to seal their legal demise.” Christo Lassiter, Eliminating Consent from the

Lexicon of Traffic Stop Interrogations, 27 Cap. U. L. Rev. 79, 128 (1998).

A police request for consent “however gently phrased, is likely to be taken

by even the toughest citizen as a command. Refusal of requested

‘permission’ is thought by most of us to risk unpleasant, though

16There is authority for the proposition that the level of inherent coercion in the

context of a knock and talk is less than in a traffic stop. See State v. Domicz, 907 A.2d
395, 407 (N.J. 2006). This may be true, but while the element of coercion may be
somewhat less, the interest in privacy is at its zenith in the home.
 50

unknown, consequences.” H. Richard Uviller, Tempered Zeal: A Columbia

Law Professor’s Year on the Streets with the New York City Police 81

(1988). 17 As a result, we have recently said that any application of

Schneckloth must be made “with teeth” and cannot involve a cursory

review of evidence leading to an inevitable conclusion. See Pals, 805

N.W.2d at 782; see also Adrian J. Barrio, Note, Rethinking Schneckloth v.

Bustamonte: Incorporating Obedience Theory into the Supreme Court’s

Conception of Voluntary Consent, 1997 U. Ill. L. Rev. 215, 233 (1997).

Third, there is a question regarding a promise of leniency or similar

representations. In this case, law enforcement officers represented that

they were not interested in the crimes of the homeowner, but only in the

health of third parties. This representation is indistinguishable from the

representation made in State v. Howard, 509 N.W.2d 764 (Iowa 1993). In

Howard, we held that an officer’s statement that “no one was in trouble

and that the officer intended only to recover the stolen property” was a

sufficient promise of leniency to invalidate consent to search. Howard,

509 N.W.2d at 766.

Further, in State v. Reinier, 628 N.W.2d 460, 469 (Iowa 2001), a

resident signed a written consent form stating that the resident

consented to the search, that the consent was “free from duress and

coercion,” that the party could ask the officers “to stop searching at any

time,” and that the officers could not make the search of the property

except “by legal warrant.” Appendix at 56, State v. Reinier, 628 N.W.2d

460 (Iowa 2001) (No. 99–1963). Notwithstanding the execution of the

consent, the officers’ statements that they were not looking for small

17Theseauthorities are cited in Tracey Maclin, The Good and Bad News About
Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27, 28 n.6, 52 n.162
(2008).
 51

quantities of drugs but “meth labs” and “major dealers” were found to

bear on the voluntariness of the consent because the statements

reflected limitations on the nature of the crime under investigation. We

stated in Reinier that such statements “subtly create a false belief that no

adverse consequences” will result from the search even when the police

obtain a written consent to search from the defendant. Reinier, 628

N.W.2d at 469. Like Howard, our holding and analysis in Reinier

strongly indicates the consent in this case should not be considered

voluntary.

A ruling to the contrary in this case would amount to a departure

from our established approach in Howard and Reinier. Citing Reinier

with approval, Professor LaFave emphasizes that even a truthful

representation that tends to minimize the consequences undermines

voluntariness. 4 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 8.2(n), at 140 (4th ed. 2004) [hereinafter LaFave].

Fourth, there was an assertion of authority when the officers

directed persons to sit on couches and leave the premises. It may not

have technically amounted to a seizure, but nonetheless it appears that

police were asserting control of the situation. Police commands in the

confines of a home suggest consent may be more a product of

acquiescence than a truly voluntary act. This conduct is a factor that

tips against voluntariness. See Randolph, 547 U.S. at 121, 126 S. Ct. at

1527, 164 L. Ed. 2d at 226–27 (stating where police separate co-

occupant for purpose of avoiding possible objections of one of the

occupants to the search, the search is invalid). This is precisely what

occurred in this case.

Fifth, law enforcement did not advise the resident that she had a

right to refuse consent. We discussed this element extensively in Pals,
 52

observing a disclosure of the right to decline the search is a very

important feature of determining whether there has been an appropriate

balance between police authority and the rights of citizens. See Pals,

805 N.W.2d at 783. As noted by Justice Stevens in the context of the

search of a home, cotenants should be advised that “each of the partners

has a constitutional right that he or she may independently assert or

waive.” Randolph, 547 U.S. at 125, 126 S. Ct. at 1529, 164 L. Ed. 2d at

229 (Stevens, J., concurring). While under a Schneckloth-type totality-of-

the-circumstances test the failure to inform a suspect of the right to

refuse consent is not dispositive, I would accord it great weight in the

knock-and-talk context. Where the privacy interests are the highest and

most intense, a truly voluntary consent to search is less likely than

where the invasion of privacy is minimal. Stated in other words, ignorant

consent does not seem likely to be truly voluntary when uniformed police

arrive at the home and seek to search highly private areas. 18

In this regard, it is important to further note that the repetitive

refusal to consent is an aggravating factor. 19 4 LaFave § 8.2(f), at 98

(stating it would seem that a suspect’s earlier refusal to give consent is a

factor which is properly taken into account as part of the totality of
circumstances in judging the later consent). At least one commentator

has suggested that once a person declines consent to a search, a rule

similar to that in Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct.

1880, 1885, 68 L. Ed. 2d 378, 386 (1981), should apply, namely, that

18For exploration of the concept of ignorant consent, see Morgan Cloud,
Ignorance and Democracy, 39 Tex. Tech. L. Rev. 1143 (2007).
19Oddly, the special concurrence turns this factor on its head, suggesting that
because Audsley at first refused, her later consent is voluntary. The message of the
special concurrence is that repeated police pressure on a resident after he or she
refuses consent, which ultimately overcomes his or her resistance, produces a valid
search.
 53

police must scrupulously honor the request in order to avoid implicit

coercion incompatible with Fourth Amendment principles. Tracey

Maclin, The Good and Bad News About Consent Searches in the Supreme

Court, 39 McGeorge L. Rev. 27, 80–81 (2008).

Under the circumstances, namely, a search of a home, the lack of

a clear statement of the right to refuse consent, statements limiting the

purpose of the search, and the repeated refusal to consent to search, I

would hold the search is involuntary under article I, section 8 of the Iowa

Constitution. As noted in Reinier:

Police can request consent to enter and search a home in the
course of investigating a complaint without intimidation,
implied authority, or minimizing the consequences. We
think the fair accommodation between the interest in
effective law enforcement and our fundamental belief in fair
law enforcement procedures requires this conclusion.

Reinier, 628 N.W.2d at 469.

The cases try to put a degree of structure on the determination of

voluntariness, and I think that Howard, Reinier, and Randolph,

collectively require a finding of involuntariness. If we do not utilize this

caselaw to structure the analysis, we are left with a wide open, totality-

of-the-circumstances test in which the seven members of this court, in

essence, sit as a jury to weigh whether the consent was really a voluntary

one or whether it was directly or indirectly coerced. Our caselaw, of

course, has long recognized that atmospherics play an important role in

that determination. We seek a realistic, and not a formal, assessment of

the totality of circumstances. In my view, the majority does not give

proper recognition to the notion that the consent exception to the

warrant requirement is a “ ‘jealously and carefully drawn’ ” exception.

Randolph, 547 U.S. at 109, 126 S. Ct. at 1520, 164 L. Ed. 2d at 219
 54

(quoting Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 1257,

2 L. Ed. 2d 1514, 1519 (1958)).

Yet, it is not at all surprising, and indeed, it is completely to be

expected, that members of this court, like members of a jury, would have

different views in many cases. Specifically, the majority believes the

record shows that the resident had knowledge of her right to decline the

request to search and that the environment was not sufficiently coercive

to invalidate the search. For the reasons already stated, I see the

situation much differently.

In Pals, we declined to reach the question of whether we should

abandon a Schneckloth-type voluntariness test in favor of the knowing

and voluntary waiver test in Zerbst. Pals, 805 N.W.2d at 782. It was

unnecessary in Pals to reach the larger issue as the court determined a

narrower ground was sufficient to decide the issues at hand. Id.

While deciding an issue on narrow grounds is generally sound, this

case demonstrates that a Schneckloth-type voluntariness test, even one

“with teeth,” does not yield completely satisfactory results. As a leading

authority has noted in the context of Schneckloth, “[I]t can seldom be

said with confidence that a particular combination of factors will

inevitably ensure a finding of either consent or no consent” because of

the difficulty in applying the multifactored voluntariness test. 4 LaFave

§ 8.2, at 53–54. The spongy nature of the Schneckloth voluntariness test

has not escaped the courts, where it has been noted that courts can be

bogged down in “needless suppression motions, hearings, and appeals.”

Hayes v. State, 794 N.E.2d 492, 497–98 (Ind. Ct. App. 2003). 20

20According to a leading Fourth Amendment treatise, the Supreme Court’s

treatment of consent in Schneckloth “generates almost universal criticism from
commentators.” See Thomas K. Clancy, The Fourth Amendment: Its History and
Interpretation § 10.4.1, at 418 (2008) (citing numerous law review commentaries).
 55

There have been several judicial reactions to the inherent

instability of Schneckloth-type totality-of-the-circumstances review. One,

as noted by Professor Weinreb, has been for courts to simply “provide a

lengthy factual description followed by a conclusion . . . without anything

to connect the two.” Lloyd L. Weinreb, Generalities of the Fourth

Amendment, 42 U. Chi. L. Rev. 47, 57 (1974). Another approach is to

give lip service to the open-ended totality-of-the-circumstances test in

Schneckloth, but instead focus on something else, such as the wording of

the request (was it a question or a demand) or upon police misconduct.

See William J. Stuntz, Privacy’s Problem and the Law of Criminal

Procedure, 93 Mich. L. Rev. 1016, 1064 (1995) (stating that the consent

issue often turns on whether police frame command as a question or a

demand); Brian A. Sutherland, Note, Whether Consent to Search Was

Given Voluntarily: A Statistical Analysis of Factors That Predict the

Suppression Rulings of the Federal District Courts, 81 N.Y.U. L. Rev. 2192,

2195 (2006) (finding that police misconduct rather than voluntariness

factors is most predictive of outcomes). Even these reformulated

shortcuts are not always consistently applied, with the end result that

there is considerable instability in the caselaw, with nuances and

hairsplitting ultimately deciding the cases. See generally Fern L. Kletter,

Annotation, Construction and Application of Rule Permitting Knock and

Talk Visits Under Fourth Amendment and State Constitutions, 15 A.L.R.

6th 515 (2006) (citing hundreds of cases with differing results).

In light of the difficulties of applying a multifactored test, a number

of states have adopted the view that in the knock-and-talk setting, police

must first advise a resident of his or her right to refuse consent before

consent may be considered voluntary. See, e.g., State v. Brown, 156

S.W.3d 722, 732 (Ark. 2004); Graves v. State, 708 So. 2d 858, 864 (Miss.
 56

1997); State v. Johnson, 346 A.2d 66, 68 (N.J. 1975); State v. Ferrier, 960

P.2d 927, 932–33 (Wash. 1998). 21 These cases generally find that knock-

and-talk procedures carry with them a degree of coercion; that the home

is entitled to special Fourth Amendment protection; and that as a result,

a resident must be advised that they may lawfully refuse to give consent.

It is sometimes claimed that advising a person of the right to refuse

consent would deprive police of an effective law enforcement tool.

Indeed, Schneckloth itself states that a requirement of a warning would

“create serious doubt whether consent searches could continue to be

conducted.” Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049, 36

L. Ed. 2d at 864. Such an assertion is logically flawed and factually

incorrect.

First, the effective law enforcement argument proves too much. If

depriving police of a tool that produces evidence is the standard, the

search and seizure provisions of article I, section 8 of the Iowa

Constitution would never be enforced and it would be effectively

21There are now literally thousands of decisions where state supreme courts
have interpreted state constitutions to grant claims of individual rights and liberties
under circumstances where the United States Supreme Court has declined to do so.
See 1 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims,
and Defenses § 1.01[1], at 1-2 (4th ed. 2006); see generally Robert F. Williams, The Law
of American State Constitutions (2009) [hereinafter Williams]. The principle of
independent interpretation applies when state and federal constitutional provisions are
identical or nearly identical. See State v. Ochoa, 792 N.W.2d 260, 264–66 (Iowa 2010)
(generally discussing independent state law grounds, including when provisions of state
and federal constitution are identical in language); State v. Cline, 617 N.W.2d 277, 284–
85 (Iowa 2000) (stating “no principle of law requires this court to interpret the Iowa
Constitution in line with the United States Constitution”), abrogated on other grounds
by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001); see also State v. Christensen,
953 P.2d 583, 586 (Idaho 1998) (“Long gone are the days when state courts will blindly
apply United States Supreme Court interpretation and methodology” even under nearly
identically worded constitutional provisions) (citation and internal quotation marks
omitted); Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992) (stating state courts should
borrow from well-reasoned and persuasive precedent when “deemed helpful, but should
never feel compelled to parrot the federal judiciary”); Williams at 135 (stating the notion
that United States Supreme Court precedents are presumptively correct under state law
is “simply wrong”).
 57

repealed. As noted by the United States Supreme Court in the context of

federal search and seizure law, “[T]he mere fact that law enforcement

may be made more efficient can never by itself justify disregard of the

Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct.

2408, 2414, 57 L. Ed. 2d 290, 301 (1978). The same is true under

article I, section 8 of the Iowa Constitution.

Further, the notion that effective law enforcement rests upon

citizen ignorance is not a principle that should be relied upon in a

democratic state based on the rule of law. While justice should be blind

to irrelevancies when weighing the evidence in the courtroom, citizens

facing searches of their homes are entitled to have their eyes open.

Justice Goldberg got it right fifty years ago in Escobedo v. Illinois, 378

U.S. 478, 490, 84 S. Ct. 1758, 1764, 12 L. Ed. 2d 977, 985 (1964), when

he wrote, “We have also learned the companion lesson of history that no

system of criminal justice can, or should, survive if it comes to depend

for its continued effectiveness on the citizens’ abdication through

unawareness of their constitutional rights.” See also James A. Adams,

Search and Seizure As Seen by Supreme Court Justices: Are They Serious

or Is This Just Judicial Humor?, 12 St. Louis U. Pub. L. Rev. 413, 449

(1993) [hereinafter Adams] (stating “constitutional rights are not to be

hidden or only grudgingly given”).

In any event, the available empirical evidence is that requiring

knowledge of the right to refuse consent does not dramatically reduce the

number of consent searches. Empirical data from Ohio and New Jersey

demonstrate that requiring warnings in the context of automobile

searches only marginally decreases consent to search. See Illya

Lichtenberg, Miranda in Ohio: The Effects of Robinette on the “Voluntary”

Waiver of Fourth Amendment Rights, 44 How. L.J. 349, 370 (2001)
 58

(stating warnings reduced consent to search by motorists by less than

ten percent).

The Schneckloth Court also declared that it would be “impractical”

to provide warnings in the give and take of police encounters with

citizens. Professor Adams declared such an argument “absurd.” Adams,

12 St. Louis L. Rev. at 447. Subsequent events have vindicated his

position. California and New Jersey have agreed to settlements of

lawsuits which require written warnings for motorists when officers seek

consent to search. The FBI has used written consents that advise

citizens of their right to refuse consent since the time of Schneckloth, and

the caselaw across the country demonstrates that law enforcement

officers commonly seek written consent to search. See, e.g., United

States v. Boone, 245 F.3d 352, 362 (4th Cir. 2001); United States v.

Maez, 872 F.2d 1444, 1453–54 (10th Cir. 1989); United States v. Tatman,

615 F. Supp. 2d 664, 670 (S.D. Ohio 2008); State v. Brown, 156 S.W.3d

722, 724–25 (Ark. 2004).

Indeed, law enforcement authorities in Iowa are no different than

those in other states when it comes to written consent to search. Our

caselaw shows that written consent forms that advise a party of his right

to refuse consent are practical and in use in Iowa. See State v. Howard,

509 N.W.2d 764 (Iowa 1993); State v. Dougherty, No. 09–0812, 2011 WL

441551, at *2 (Iowa Ct. App. Feb. 9, 2011); State v. DeWitt, No. 02–1379,

2003 WL 22805617, at *2 (Iowa Ct. App. Nov. 26, 2003). And, in this

case, law enforcement officers properly recorded the encounter, thereby

eliminating the “he said, she said” swearing match. 22 Whatever else

22Affordable technology now allows interrogations, citizen encounters, and

identification procedures such as lineups to be recorded. Such recordings reduce the
potential for factual disputes and promote adherence to professional law enforcement
practices.
 59

might be true, obtaining written consents that contain appropriate brief

statements advising citizens of the right to refuse consent is not

impractical at all.

Indeed, our precedents are strongly pushing in the direction of

cleaning up Schneckloth. In Welch v. Iowa Department of Transportation,

801 N.W.2d 590 (Iowa 2011), this court considered whether a driver

could change his mind after he refused to consent to a chemical testing

under Iowa’s implied consent law. We held that a driver could not

change his mind once he refused. We stated:

[A] bright-line rule has the advantage of providing clear
guidance to law enforcement personnel. Clarity as to what
the law requires is generally a good thing. It is especially
beneficial when the law governs interactions between the
police and citizens.

Welch, 801 N.W.2d at 601. This powerful language cuts dead against

continued application of the totality-of-the-circumstances test of

Schneckloth.

We can continue to employ a multifactored test for determining

consent issues under article I, section 8. We have improved on this test

considerably by applying a more rigorous review than under federal
precedents. Yet, the totality-of-the-circumstances test of Schneckloth is

inherently unstable.

As a result, I am convinced that it would be better simply to

require that law enforcement advise a homeowner or resident of his or

her constitutional right to decline to consent to a search. This would

provide a much clearer rule for law enforcement and citizens alike. See

Welch, 801 N.W.2d at 601. When the homeowner or resident is advised

of his or her right to consent, a presumption would arise that the

warnings are voluntary. On the other hand, the failure of police to
 60

provide such a warning would result in reversal. Such an approach is

consistent with constitutional values, provides a more workable rule for

law enforcement, and ensures that citizens are aware of their

constitutional rights before surrendering them. 23

In evaluating this case, we must ensure that our approach to

article I, section 8 does not establish a framework where constitutional

protection “fades away and disappears.” Coolidge v. New Hampshire, 403

U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971). A

knock-and-talk process whereby police seek consent to search a home

raises substantial privacy issues under article I, section 8 of the Iowa

Constitution. Under a rigorous application of a Schneckloth-type totality-

of-the-circumstances approach, the consent in this case is invalid. In

the alternative, we should abandon the totality-of-the-circumstances test

of Schneckloth altogether and adopt a requirement that a citizen must be

advised of his or her right to refuse consent before a knock-and-talk

search is valid. Such an approach is more stable than other alternatives;

provides a brighter line for law enforcement and citizens alike; is more

consistent with the values underlying article I, section 8; and would be a

significant improvement in our search and seizure law.

In any event, this case, decided by a four to three vote, has a clear

practical message. When law enforcement does not advise a homeowner

or resident of their right to refuse consent, a subsequent search might

23In this case, Lowe did not brief the issue of whether Schneckloth should be
abandoned and replaced by a mandatory warning or with a Zerbst-type test. The
majority thus declines to consider whether we should abandon Schneckloth under
either theory. Unlike the majority, I regard the issue as sufficiently intertwined to allow
the court to address the issue. See Feld v. Borkowski, 790 N.W.2d 72, 84 (Iowa 2010)
(Appel, J., concurring in part and dissenting in part). In any event, it is critically
important that the court not establish a pattern of narrowly viewing issues in order to
defeat assertions of individual rights and then of broadly viewing issues in order to
uphold the actions of the state or business actors against claims of individuals.
 61

well be found invalid under the difficult to apply totality-of-the-

circumstances Schneckloth test as applied by this court under article I,

section 8 of the Iowa Constitution. Law enforcement will increase the

likelihood that a search of the home will be found “free and voluntary,”

even under the current test, by advising home owners or residents of

their right to refuse.

Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part.