Alex Wayne Westra v. Iowa Department of Transportation

IN THE SUPREME COURT OF IOWA
No. 18–1050

Filed June 14, 2019

ALEX WAYNE WESTRA,

Appellant,

vs.

IOWA DEPARTMENT OF TRANSPORTATION,

Appellee.

Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble, Judge.

A motorist appeals a district court ruling denying his petition for

judicial review of an agency decision suspending his driver’s license for

one year. AFFIRMED.

Matthew T. Lindholm of Gourley, Rehkemper, & Lindholm, P.L.C.,
West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Robin G. Formaker,

Assistant Attorney General, for appellee.
 2

MANSFIELD, Justice.

This case began when a driver tried to reverse course. But it

presents the question whether our court should reverse course.

Specifically, should we overrule precedent and apply the exclusionary rule

to driver’s license revocation proceedings when an Iowa statute dictates

otherwise?

In Westendorf v. Iowa Department of Transportation, 400 N.W.2d

553, 557 (Iowa 1987), superseded by statute as recognized by

Brownsberger v. Department of Transportation, 460 N.W.2d 449, 450–51

(Iowa 1990), we declined to apply the exclusionary rule so long as the

enumerated statutory conditions for license revocation were met. Later,

the general assembly enacted a limited exception to Westendorf. See Iowa

Code § 321J.13(6) (2017). This requires the Iowa Department of

Transportation (DOT) to rescind revocation of a driver’s license if there has

been a criminal prosecution for operating while intoxicated (OWI) and the

criminal case determined that the peace officer did not have reasonable

grounds to believe a violation of the OWI laws had occurred or that the

chemical test was otherwise inadmissible or invalid. We affirmed the

limited nature of that exception in Manders v. Iowa Department of

Transportation, 454 N.W.2d 364, 366–67 (Iowa 1990).

In the present case, a driver was pulled over by a DOT officer after

he stopped on I-80 to make unauthorized use of a median crossover in

order to turn around and head in the other direction. It turned out he had

an open container in his car and smelled of an alcoholic beverage. After

he refused all testing, his license was suspended for one year, but he was

never charged with OWI. Adhering to our Westendorf and Manders

precedents, the DOT upheld his license suspension. Notably, the driver’s

only challenge to the stop was that the DOT officer lacked statutory
 3

authority; the driver did not contest reasonable suspicion for the stop. The

district court also denied relief, leading to this appeal.

We are now asked, in effect, to expand the legislature’s post-

Westendorf statutory exception and apply the exclusionary rule to all

driver’s license revocation proceedings if there was any problem with the

stop. For the reasons discussed herein, we decline to do so and instead

adhere to the legislative boundaries of the exception when the only legal

flaw in the stop was the officer’s lack of statutory authority. Accordingly,

we affirm the judgment of the district court upholding the license

revocation in this case.

I. Facts and Procedural History.

On May 9, 2017, at approximately 12:26 a.m., Officer Austin Wilson

of the DOT was patrolling westbound on I-80, a four-lane divided interstate

highway, in Jasper County. At a location where there was a median

crossover marked for use by authorized vehicles only, Officer Wilson

observed an eastbound vehicle coming to a stop. It appeared the driver

was preparing to use the crossover, turn around, and head westbound.

Officer Wilson took the crossover himself and when the driver of the

eastbound vehicle decided to keep going eastbound on I-80, Officer Wilson

pulled it over using his overhead lights.

The driver of the vehicle, Alex Westra, admitted he had been about

to make a turnaround using the median crossing and knew it was a bad

idea. Officer Wilson noticed that Westra had bloodshot and watery eyes

and saw an open container of Four Loko (an alcoholic beverage) within

arm’s reach. Westra initially denied knowing there was a beverage can in

his vehicle. He refused to hand over the beverage can and refused to step

out of his vehicle.
 4

When a backup officer arrived, Officer Wilson removed Westra from

his vehicle. Officer Wilson could smell the odor of an alcoholic beverage

coming from Westra’s person. In addition, on inspection, the can of Four

Loko had only one-quarter of its contents remaining.

Westra declined to undergo any preliminary testing for intoxication.

Officer Wilson escorted Westra to the Jasper County jail where Westra was

read the implied consent advisory and made two phone calls. Westra then

refused to take the Datamaster chemical test.

Westra was never charged with OWI but was charged with two traffic

violations—stopping on a travelled portion of I-80 in violation of Iowa Code

section 321.354 and driving with an open container of an alcoholic

beverage in violation of section 321.284. Westra filed a motion to suppress

in the traffic case, contending that Officer Wilson of the DOT lacked

statutory authority to stop him on May 9 on I-80. See Rilea v. Iowa Dep’t

of Transp., 919 N.W.2d 380, 383 (Iowa 2018). The motion was overruled,

and Westra was found guilty and sentenced to pay fines of $100 and $200

respectively for the two violations. Westra appealed to the district court,

however, which found that the DOT stop was invalid and dismissed the

two citations.

Meanwhile, the DOT notified Westra that his driver’s license was

being revoked for one year under Iowa Code section 321J.9. Westra

requested an administrative hearing, and on July 11 he received a

telephonic hearing before an administrative law judge (ALJ). The issue at

the hearing was whether DOT Officer Wilson had statutory authority to

stop Westra’s vehicle. The ALJ entered a decision on August 15 finding

that he did. The ALJ reasoned that “Officer Wilson was operating within

his authority as a designated peace officer under [section] 321J.8(3)”

relating to enforcement of OWI laws. As the ALJ explained,
 5
Although he could not have been assured that the driver of
the pickup he observed that night was impaired by alcohol or
other substances, he did see it was being operated in an
erratic or illegal manner which can be a part of a finding of
reasonable grounds for a possible violation of section 321J.2
as set out above. It is reasonable to find the Appellant’s
actions of coming to a stop on a traveled portion of a two-lane
interstate highway and doing so in a proximity to a median
cross-over lane he could not legally use were valid reasons for
Officer Wilson [to] perform a traffic stop at that time.

Westra appealed this decision to the director of the DOT. On

September 21, the director agreed with the ALJ that Officer Wilson had

statutory authority to enforce the OWI laws as to Westra. He also found

that Westra’s argument for suppression of his refusal to take the chemical

test was immaterial because the exclusionary rule did not apply to this

driver’s license revocation proceeding.

Westra petitioned for judicial review in the Polk County District

Court. Following a hearing, the district court issued a ruling on May 17,

2018. The district court found that “Officer Wilson did not have statutory

authority to stop Westra.” However, it declined to hold under article I,

section 8 of the Iowa Constitution that the exclusionary rule applied to

Westra’s license revocation proceeding. It also rejected Westra’s

alternative argument that article I, section 9 of the Iowa Constitution (the

Due Process Clause) required exclusion of Westra’s refusal to take the

Datamaster chemical test. Westra appealed and we retained the appeal.

II. Standard of Review.

Factual findings of the DOT are reviewed for substantial evidence

unless the underlying claim is a constitutional one, in which case review

of facts is de novo. See Iowa Code § 17A.19(10)(f). Both parties agree that

we do not defer to the DOT’s interpretations of Iowa Code section

321J.13(6) or, of course, to the DOT’s views on the Iowa Constitution. See
 6

id. § 17A.19(10)(c); Bearinger v. Iowa Dep’t of Transp., 844 N.W.2d 104,

106 (Iowa 2014).

III. Legal Analysis.

A. Whether Officer Wilson Had Authority to Stop Westra. The

first question is whether Officer Wilson had statutory authority to stop

Westra on I-80 on May 9, 2017. Westra’s claim goes away if Officer Wilson

had such authority. In Rilea, we held that until new legislation became

effective on May 11, DOT officers lacked authority to issue traffic citations

unrelated to operating authority, registration, size, weight, or load. 919

N.W.2d at 383. However, we also clarified that Iowa Code chapter 321J

provided a separate font of authority, and “an IDOT [motor vehicle

enforcement] officer, if properly trained, can enforce chapter 321J.” Id. at

392. In doing so, we relied on Iowa Code section 321J.1(8)(e), which states

that a “peace officer” for purposes of chapter 321J includes “[a]ny other

law enforcement officer who has satisfactorily completed an approved

course relating to motor vehicle operators under the influence of alcoholic

beverages.” Id.

Yet we decided another case the same day. See State v. Werner, 919

N.W.2d 375 (Iowa 2018). Werner involved a motorist who had been

stopped by a DOT officer for speeding and who was only later determined

to have been driving under revocation in violation of Iowa Code section

321J.21. Id. at 376. Under these circumstances, we concluded the State

could not rely on the DOT officer’s chapter 321J enforcement authority.

Id. at 380. We noted, “Whatever merit this argument may have in other

contexts, there is no indication Officer Glade knew or suspected Werner’s

driver’s license had been revoked for operating while intoxicated when he

made the August 18 stop.” Id.
 7

We believe the quoted language from Werner controls here. On this

record, we are not persuaded that Officer Wilson “knew or suspected”

Westra was driving under the influence when he stopped his vehicle.

Officer Wilson’s testimony contains no inkling of this.

The DOT found that Officer Wilson could rely on his enforcement

authority in chapter 321J based on the following reasoning: “[H]e did see

[the vehicle] was being operated in an erratic or illegal matter which can

be a part of a finding of reasonable grounds for a possible violation of

section 321J.2 as set out above.” If this were a finding that Officer Wilson

was actually engaged in OWI enforcement when he stopped Westra, it

might carry the day. However, this was merely a finding that the driving

behavior Officer Wilson observed could have helped provide the basis for a

reasonable suspicion finding. Under Werner, Officer Wilson’s stop was

invalid.

B. Whether Article I, Section 8 Required Suppression of

Westra’s Refusal to Take the Chemical Test. Because we agree with the

district court that Officer Wilson lacked statutory authority to stop Westra

on I-80, we must consider whether the Iowa Constitution required

suppression of Westra’s refusal to take the chemical test and, thus, would

require us to unwind his license revocation. To do so, we will first review

the relevant statutes and caselaw relating to license revocation hearings.

Then we will address the heart of Westra’s argument.

1. License revocations in Iowa and the evidence that can be

considered. As of 1985, Iowa law provided that a license revocation

hearing

shall be limited to the issues of whether a peace officer had
reasonable grounds to believe that the person was operating
a motor vehicle in violation of section 321.281 [now section
321J.2] and either of the following:
 8
a. Whether the person refused to submit to the test or
tests.

b. Whether a test was administered and the test results
indicated an alcohol concentration [above the legal limit].

Iowa Code § 321B.26(a)–(b) (1985).

In Westendorf, a case decided under this law, we held that the

Fourth Amendment exclusionary rule did not apply to driver’s license
revocation proceedings. 400 N.W.2d at 557. The driver sought to

challenge his license revocation on the ground that the police officer had

lacked probable cause to stop his vehicle. Id. at 554. The district court

agreed and overturned the revocation. Id. We, however, reversed and

reinstated the revocation. Id. at 557.

We pointed out that “the statutory conditions for revocation by the

department were clearly satisfied.” Id. at 555. We acknowledged,

Had the evidence demonstrated that any one of the
listed statutory conditions was not present—for example that
the officer did not have “reasonable grounds to believe
Westendorf had been operating the motor vehicle in violation
of section 321.281” the department would not have been
warranted in revoking Westendorf’s driver’s license.

Id. Yet in the absence of such a statutory ground for excluding the

evidence, we held that the driver could not challenge his license revocation

under the Fourth Amendment. Id. at 556–57. We explained,

The benefit of using reliable information of intoxication
in license revocation proceedings, even when that evidence is
inadmissible in criminal proceedings, outweighs the possible
benefit of applying the exclusionary rule to deter unlawful
conduct. Consequently, the exclusionary rule formulated
under the fourth and fourteenth amendments was
inapplicable in this license revocation proceeding.

Id. at 557.

The following year, the general assembly amended the law to provide

drivers with certain additional grounds for challenging license revocations.
 9

See 1988 Iowa Acts ch. 1214, § 2 (codified at Iowa Code § 321J.13(4)

(1989)). In current form, this provision reads,

b. The person shall prevail at the [license revocation]
hearing if, in the criminal action on the charge of violation of
section 321J.2 or 321J.2A resulting from the same
circumstances that resulted in the administrative revocation
being challenged, the court held one of the following:

(1) That the peace officer did not have reasonable
grounds to believe that a violation of section 321J.2 or
321J.2A had occurred to support a request for or to
administer a chemical test.

(2) That the chemical test was otherwise inadmissible or
invalid.

Iowa Code § 321J.13(6)(1)–(2) (2017).

Two years thereafter, in Manders, we upheld another driver’s license

revocation, again approving of the DOT’s refusal to consider the driver’s

claim that the stop of his vehicle lacked reasonable cause. 454 N.W.2d at

365. We also made clear that the 1988 amendment applied only “in the

limited situation in which an adjudication on the admissibility of evidence

relevant to the implied consent law has been made in a criminal proceeding

growing out of the same facts.” Id. at 366.

Later that same year, in Brownsberger, we confronted the case of a
driver whose license had been revoked but who had received a favorable

ruling on his motion to suppress in the parallel criminal prosecution. 460

N.W.2d at 450. We concluded,

By its terms, the statute binds the DOT to certain action taken
by the district court in separate criminal proceedings arising
out of the same circumstances. Moreover, the remedy
fashioned by the legislature is clearly exclusionary in nature.
The department must rescind any license revocation that flows
from police action which is subsequently found by the court
to be without reasonable grounds for belief that the OWI law
has been violated.

Id. at 451.
 10

More recently, in State v. Taeger, 781 N.W.2d 560, 566 (Iowa 2010),

a driver claimed the State had sought “to avoid the application of Iowa

Code section 321J.13(6) by preemptively moving to dismiss the criminal

OWI action when it became clear that he would prevail on the motion to

suppress.” We reviewed the landscape as already filled in by Westendorf,

the 1988 amendment, Manders, and Brownsberger. Id. at 565–66. We

then made clear that a dismissal to avoid the effects of section 321J.13(6)

would not be “in the furtherance of justice” as required by Iowa Rule of

Criminal Procedure 2.33(1) governing dismissals of criminal actions. Id.

at 566–67.

Westra does not dispute that the literal terms of Iowa Code section

321J.13 provide him no relief. The section expressly provides that the

revocation hearing “shall be limited to” whether a peace officer had

reasonable grounds to believe the driver was operating a motor vehicle

under the influence and whether the driver refused to submit to chemical

testing (or had an alcohol concentration in excess of the legal limit). Iowa

Code § 321J.13(2). Westra does not dispute that those two preconditions

for revocation were met. Additionally, to benefit from section 321J.13(6),

Westra must have obtained a ruling “in the criminal action” that the

chemical test “was otherwise inadmissible or invalid.” Id. § 321J.13(6)(b).

That did not occur.

Nonetheless, Westra argues that it would be incongruous to permit

challenges to the legality of a driver stop to be raised in a revocation

proceeding only when there was a parallel criminal proceeding in which a

motion to suppress is granted. As he puts it, the enactment of Iowa Code

section 321J.13(6) “seemingly erodes” Westendorf’s cost–benefit rationale.

He argues,
 11
Unfortunately, what was not contemplated by the legislature
was factual scenarios like the present one where a license
holder is not afforded the protections of Iowa Code Section
321J.13(6) either because a criminal charge for OWI is not
filed or was voluntarily dismissed before a suppression ruling
could be obtained.

Regardless of the possible merits of these policy arguments, we are

not free to rewrite the statute. In Manders, which we decided only two

years after the predecessor to Iowa Code section 321J.13(6) was enacted,

we found that the statute required “an adjudication on the admissibility of

evidence . . . in a criminal proceeding growing out of the same facts.” 454

N.W.2d at 366. There was no such adjudication here. Westra never faced

an OWI criminal prosecution.

Furthermore, Iowa Code section 321J.13 has been amended a host

of times since 1990. Most notably, the general assembly deleted the

provision in question in 1997, see 1997 Iowa Acts ch. 104, § 31 (removing

Iowa Code § 321J.13(4) (codified at Iowa Code § 321J.13 (Supp. 1997))),

but then restored it in 1999. See 1999 Iowa Acts ch. 13, § 22 (codified at

Iowa Code § 321J.13(6) (Supp. 1999)). This makes the argument that the

legislature didn’t realize what it was doing hard to sustain. See Welch v.

Iowa Dep’t of Transp., 801 N.W.2d 590, 599–600 (Iowa 2011) (“These

guiding principles are especially salient when the general assembly has

reenacted or repeatedly amended the statutory provision in question

without disturbing our previous interpretation.”).
2. Iowa Code section 804.20. Westra also observes that we have

allowed violations of Iowa Code section 804.20 to be grounds for exclusion

of a refusal to take the chemical test in driver’s license revocation

proceedings. See Didonato v. Iowa Dep’t of Transp., 456 N.W.2d 367, 369

(Iowa 1990); Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa

1988), abrogated by State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010). But
 12

this rule of exclusion is longstanding and predates Westendorf and

Manders. See Fuller v. Iowa Dep’t of Transp., 275 N.W.2d 410, 411 (Iowa

1979) (announcing this rule). When we decided Fuller, the first case

announcing this rule, chapter 321J’s predecessor did not expressly limit

the issues that could be raised in revocation proceedings. See Iowa Code

§ 321B.8 (1977). In 1984, the legislature amended the license revocation

law to expressly limit the issues that could be raised in license revocation

proceedings. See 1984 Iowa Acts ch. 1292, § 17 (codified at Iowa Code

§ 321B.26 (1985)) (changing “its scope shall cover” to “its scope shall be

limited to”). Nonetheless, without discussing this 1984 amendment, we

later reaffirmed Fuller in Ferguson and Didonato. See Ferguson, 424

N.W.2d at 466; see also Didonato, 456 N.W.2d at 369. In Didonato we

discussed and then expressly distinguished Manders, explaining that

section 804.20 was “broadly applicable.” 456 N.W.2d at 369. Hence, the

argument that Westra raises now with respect to section 804.20 was

thoroughly aired and considered by our court twenty-nine years ago.

Iowa Code section 804.20 provides the arrestee with “a limited

statutory right to counsel before making the important decision to take or

refuse a chemical test under implied consent procedures.” State v. Vietor,

261 N.W.2d 828, 831 (Iowa 1978). Section 804.20 thus involves a right to

counsel and helps insure that the decision to refuse the test, and subject

oneself to license revocation for at least a year, is informed. See State v.

Walker, 804 N.W.2d 284, 289–91 (Iowa 2011). Violations of section 804.20

are a simple misdemeanor. See Iowa Code § 804.20 (2017). Accordingly,

we reaffirm that the provisions of section 804.20 are “broadly applicable”

to license revocation proceedings. Didonato, 456 N.W.2d at 369. Still, that

does not provide a reason to overrule our precedent and disregard the
 13

specific terms of section 321J.13(6) in a case where section 804.20 does

not apply.

3. Article I, section 8. We now come to Westra’s principal appellate

argument that article I, section 8 of the Iowa Constitution requires

suppression of his refusal to take the chemical test. In his view, the

legislature cannot limit the scope of the license revocation hearing to

exclude such issues.

Looking outside Iowa, most states do not apply the exclusionary rule

in driver’s license revocation proceedings. See generally Thomas M.

Fleming, Annotation, Admissibility, in Motor Vehicle License Suspension

Proceedings, of Evidence Obtained by Unlawful Search and Seizure, 23

A.L.R.5th 108 (1994).

Westra cites five cases to the contrary, but they appear to be based

largely on interpretation of the specific state statutes that were at issue.

For instance, in State v. Lussier, 757 A.2d 1017, 1021 (Vt. 2000), the

Vermont Supreme Court reasoned as follows in concluding that a driver

could raise the constitutionality of the stop in a license suspension

proceeding:

[A] rational interpretation of [the Vermont license suspension
law] would permit defendants to challenge the reasonableness
of the officer’s belief based on the fact that it was derived from
an unlawful stop. The State seeks a more narrow
interpretation, however, which would permit law enforcement
officers to make random stops of vehicles for any or no reason
at all in the hopes of detecting drunk drivers. . . . License
suspensions could follow the unlawful police conduct as long
as at any point after the stop the officer formed a reasonable
belief that the defendant was intoxicated. We cannot conceive
that the Legislature intended to insert into the civil
suspension system all of the statutory rights concerning
consent to evidentiary tests, and at the same time to dispense
with basic constitutional protections against unreasonable
governmental intrusions. Accordingly, we decline the State’s
invitation to attribute to the Legislature the intent to sanction
 14
unconstitutional police conduct in the context of civil
suspension proceedings.

(Citations omitted); see also Fla. Dep’t of Highway Safety & Motor Vehicles

v. Hernandez, 74 So.3d 1070, 1079 (Fla. 2011) (“[R]eading the two statutes

together leads to the conclusion that there must be a means for

challenging the legality of the suspension when the request for a breath

test was not incident to a lawful arrest.”); People v. Krueger, 567 N.E.2d

717, 722–23 (Ill. App. Ct. 1991) (“[T]he issue here is . . . whether the statute

should be construed to condition the Secretary of State’s power to suspend
a driver’s license on the presence of a valid arrest.”); Schuster v. State Dep’t

of Taxation & Revenue, 283 P.3d 288, 294 (N.M. 2012) (“[T]he requirement

in [New Mexico law] that MVD find that ‘the person was arrested’ requires

a finding that the arrest and police activity leading to the arrest were

constitutional.”); Watford v. Bureau of Motor Vehicles, 674 N.E.2d 776, 778

(Ohio 1996) (per curiam) (relying on Williams v. Ohio Bureau of Motor

Vehicles, 610 N.E.2d 1229, 1231 (Ohio Mun. Ct. 1992), which determined

the issue as a matter of statutory construction); Pooler v. Motor Vehicles

Div., 755 P.2d 701, 703 (Or. 1988) (en banc) (“[W]e conclude that the

legislature must have intended a valid arrest when it used the term ‘under

arrest’ in that statute.”). It is true some of these decisions have

constitutional elements. See Lussier, 757 A.2d at 1025–27 (adding in dicta

that the exclusionary rule under the Vermont Constitution applies to civil

suspension proceedings); see also Schuster, 283 P.3d at 294.

At the same time, a number of states have held that their state

constitutions do not require exclusion of evidence obtained through

unconstitutional traffic stops in administrative license revocation

proceedings. See Nevers v. State, 123 P.3d 958, 964 (Alaska 2005)

(rejecting the application of the exclusionary rule to administrative license
 15

revocation hearings under both the Fourth Amendment and the Alaska

Constitution and stating, “[W]e do not believe that applying the

exclusionary rule for search and seizure violations would add significant

deterrence because the police are already sufficiently deterred from such

unlawful conduct by the applicability of the exclusionary rule to all

criminal cases that may result from their investigations.”); Francen v. Colo.

Dep’t of Revenue, 411 P.3d 693, 702–03 (Colo. App. 2012) (finding that the

exclusionary rule under the United States and Colorado Constitutions

does not apply in civil revocation proceedings); Martin v. Kan. Dep’t of

Revenue, 176 P.3d 938, 953 (Kan. 2008) (“Any additional deterrent effect

on law enforcement violation of the Fourth Amendment and [the Kansas

Constitution] to be gleaned from extension of the rule beyond the criminal

DUI setting would be minimal, and it cannot outweigh the remedial

imperative of preventing alcohol-and/or drug-impaired drivers from injury

or killing themselves or others.”), overruling on other grounds recognized

by State v. Gray, 403 P.3d 1220, 1225 (Kan. 2017); Riche v. Dir. of Revenue,

987 S.W.2d 331, 334 (Mo. 1999) (en banc) (declining to apply the

exclusionary rule under the United States and Missouri Constitutions to

driver’s license revocation proceedings); Jacobs v. Dir., N.H. Div. of Motor

Vehicles, 823 A.2d 752, 755 (N.H. 2003) (rejecting the argument that the

New Hampshire Constitution requires exclusion of evidence obtained from

a constitutionally invalid stop in a driver’s license suspension proceeding).

We have never directly confronted whether article I, section 8, as

opposed to the Fourth Amendment, would require exclusion of evidence

obtained from an unconstitutional stop in a license revocation proceeding.

On the other hand, we have held that the article I, section 8 exclusionary

rule does not apply to probation revocation hearings. Kain v. State, 378

N.W.2d 900, 902–03 (Iowa 1985). In Kain, we rejected a probationer’s
 16

claim that the fruits of an illegal investigatory stop of his motor vehicle

should have been suppressed in his probation revocation hearing. Id.

In State v. Cline, 617 N.W.2d 277, 293 (Iowa 2000) (en banc),

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

(Iowa 2001), we declined to adopt the good faith exception to the

exclusionary rule under article I, section 8, reasoning that “[t]o do so would

elevate the goals of law enforcement above our citizens’ constitutional

rights, a result not supported by any principle of constitutional law.” Id.

at 293. Cline, in other words, placed a high value on the courts not

condoning a violation of constitutional rights. See id. at 292–93.

4. The stop in this case. Yet a question arises whether the stop itself

in this case was unconstitutional under article I, section 8. Westra does

not dispute he violated the traffic laws: he brought his vehicle to a halt on

the traveled portion of I-80 while preparing to make an illegal turn across

the median. Westra has not explained why a traffic stop that was merely

in excess of the officer’s statutory authority would trigger a constitutional

right to have evidence suppressed. See Werner, 919 N.W.2d at 377 (noting

that a case challenging a DOT officer’s stop involved the suppression of

evidence “on statutory grounds”).

There are some out-of-state authorities declining to apply the

exclusionary rule in criminal cases where the only issue was the officer’s

statutory authority. In People v. Wolf, 635 P.2d 213, 214, 218 (Colo. 1981)

(en banc), the Colorado Supreme Court declined to apply the exclusionary

rule when police arrested the defendant outside the territorial limits of

their authority. The court explained, “Despite the fact that the Denver

police violated the statutes governing their authority to arrest, the issue,

for purposes of application of the exclusionary rule, is whether the arrest

was unconstitutional.” Id. at 217. Because there was probable cause for
 17

the arrest, it “did not offend against constitutional restraints on

unreasonable seizures,” and the court did not impose the exclusionary

rule. Id. at 217–18; see also State v. Green, 354 P.3d 446, 451 (Idaho

2015) (“Because these subsequently enacted arrest standards are merely

statutory, constitutional remedies are inappropriate when those statutes

have been violated by police. Although the Legislature could certainly

specify suppression as the remedy for police violation of one of these

statutes, because such a statutory violation is not a constitutional

violation, suppression is not warranted absent such a legislative

directive.”); State v. Gates, 145 So.3d 288, 304 (La. 2014) (“Even if we

assume Officer Bell acted outside of his territorial jurisdiction in the

detention of the defendant, suppression of the evidence obtained after

Mr. Gates’ detention would not be warranted. The statutory rules which

delineate the territorial zones of responsibility of various law enforcement

agencies are not designed to prevent unreasonable invasions of privacy.

There are no constitutional grounds present here to justify the

suppression of evidence.”); State v. Keller, 396 P.3d 917, 925–26 (Or. 2017)

(finding that an unauthorized stop by a Washington police officer that

would have been legal if performed by an Oregon police officer did not

violate the Oregon Constitution and therefore the suppression of evidence

in a driving-while-intoxicated case was not required).

In Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 1608

(2008), the United States Supreme Court held that “[w]hen officers have

probable cause to believe that a person has committed a crime in their

presence, the Fourth Amendment permits them to make an arrest,”

regardless of whether the procedure violates state law or not. State law,

in other words, did not affect the federal constitutional analysis. See id.
 18

We acknowledge that in State v. Brown, 39 N.E.3d 496, 502 (Ohio

2015), the Ohio Supreme Court held that “a traffic stop for a minor

misdemeanor offense made by a township police officer without statutory

authority to do so violates Article I, Section 14 of the Ohio Constitution.”

The court reasoned,

The government’s interests in permitting an officer without
statutory jurisdiction or authority to make a traffic stop for a
minor misdemeanor offense in these circumstances is
minimal and is outweighed by the intrusion upon the
individual’s liberty and privacy that necessarily arises out of
the stop. Accordingly, the traffic stop and the ensuing search
and arrest in this case were unreasonable and violated Article
I, Section 14 of the Ohio Constitution, and the evidence seized
as a result should have been suppressed.

Id. In that case, a local township police officer pulled over a motorist for a

lane violation on the interstate in excess of his statutory authority,

eventually leading to a criminal conviction for possession of oxycodone.

Id. at 497–98; see also State v. Cuny, 595 N.W.2d 899, 903 (Neb. 1999)

(holding that an extraterritorial stop performed by Pine Ridge Reservation

police officers in Nebraska violated the Nebraska Constitution); State v.

Barker, 25 P.3d 423, 425–26 (Wash. 2001) (en banc) (holding that an out-

of-state officer’s arrest violated the Washington Constitution, which

expressly requires “authority of law”). Even these cases, however, do not

present the issue of whether the officer’s statutory authority may be raised

in a civil license revocation proceeding.

We are not persuaded that a stop by a DOT enforcement officer in

excess of his statutory enforcement authority, but based upon reasonable

suspicion and probable cause, amounts to a constitutional violation. A

constitutional violation does not occur every time a peace officer simply

fails to adhere to a statute. Only those violations that amount to

“unreasonable seizures or searches” violate article I, section 8. In our view,
 19

the main purpose of Iowa Code section 80.22 was not to protect the privacy

interests of motorists, but rather to preserve the role of the Department of

Public Safety (DPS) vis-à-vis other state agencies as the state traffic

enforcement entity on public highways. Section 80.22 is part of the

organizational chapter dealing with DPS. It was enacted in 1939 when

DPS was formed, under the heading, “Duplication in Police Officers

Prohibited.” 1939 Iowa Acts ch. 120, § 95 (codified at Iowa Code § 80.22

(1946)). We believe its primary goal was to allocate responsibility within

state government, not to protect motorists by reducing vehicle stops.

Notably, it does not affect the ability of municipal and county officials to

enforce traffic laws on the same highways. See Iowa Code §§ 321.1(50),

.6, .485 (2017); id. § 331.653(28); see also State v. Snider, 522 N.W.2d 815,

818 (Iowa 1994) (“[A] municipal police officer has authority to arrest for

state traffic violations anywhere in the state.”).

In State v. Ramirez, 895 N.W.2d 884, 898 (Iowa 2017), we

distinguished Cline and declined to grant a motion to suppress in a

situation where constitutional rights were not at issue. There we upheld

the use in an Iowa criminal prosecution of evidence obtained by a joint

federal–state team using an anticipatory warrant that would have been

illegal under Iowa law. Id. We said,

Although Ramirez raises article I, section 8 of the Iowa
Constitution in his briefing, he does not claim that the search
itself would have violated the Iowa Constitution. Rather, he
maintains only that Iowa statutes do not authorize this type
of search and, therefore, it would violate the Iowa Constitution
to admit the results of the search in an Iowa court. We disagree
with that broad proposition.

Id.

This language from Ramirez has force in the present case. We

conclude that article I, section 8 simply has no play in a license revocation
 20

proceeding when the issue is whether to suppress a stop that was

supported by reasonable suspicion but exceeded the officer’s statutory

authority.

In effect, our present task requires us to reconcile two sets of

statutes. One of them, Iowa Code sections 80.22, 321.2, and 321.477, did

not allow DOT officers, before May 11, 2017, to engage in general traffic

enforcement on the public highways of the state. See Iowa Code § 80.22;

Rilea, 919 N.W.2d at 388–89. The other, section 321J.13, limits the issues

that can be raised in a license revocation proceeding; the officer’s statutory

authority is not one of those issues. It is the legislature’s prerogative to

determine priorities as between its own statutes. 1

One final note: “In construing various provisions of chapter 321J,

we have continuously affirmed that the primary objective of the implied

consent statute is the removal of dangerous and intoxicated drivers from

Iowa’s roadways in order to safeguard the traveling public.” Welch v. Iowa

Dep’t of Transp., 801 N.W.2d 590, 594 (Iowa 2011). “[W]e have

characterized an administrative license revocation under section 321J.9

as remedial, promoting the overarching remedial purpose of chapter 321J

itself.” Id. at 601. “A remedial statute, like our implied consent law,

1We do not think the rationale of Taeger applies here. In the first place, Taeger

was based on an interpretation of Iowa Rule of Criminal Procedure 2.33(1), which limits
the circumstances under which a criminal case, once filed, can be dismissed. See Taeger,
781 N.W.2d at 566–67. Rule 2.33(1) does not come into play where the State never
initiated an OWI case against the defendant. We are not at liberty to rewrite the rule.
Nor is the option available to rewrite the text of Iowa Code section 321J.13 to
expand the scope of what can be raised in a license revocation proceeding. “[W]e have
repeatedly said that ‘we are bound by what the legislature said, not by what it should or
might have said.’ ” In re Marshall, 805 N.W.2d 145, 160 (Iowa 2011) (quoting Ranniger v.
Iowa Dep’t of Revenue & Fin., 746 N.W.2d 267, 270 (Iowa 2008)).
Constitutional questions may present different issues, but the question here is
one of statutory interpretation.
 21

should be liberally construed consistent with its statutory purpose.” State

v. Green, 470 N.W.2d 15, 18 (Iowa 1991).

IV. Conclusion.

Accordingly, for the reasons stated, we affirm the judgment of the

district court denying Westra’s petition for judicial review. 2

AFFIRMED.

All justices concur except Wiggins, J., who files a dissenting opinion,

and Appel, J., who files a separate dissenting opinion in which Wiggins,

J., joins, and McDonald, J., who takes no part.

2Westra also argues that not allowing him to raise the lack of statutory authority

of the DOT officer in a license revocation proceeding would violate both substantive and
procedural due process under article I, section 9 of the Iowa Constitution. Yet we do not
see what this argument adds to his exclusionary rule argument under article I, section
8. If it is permissible under article I, section 8 to introduce proof that Westra refused to
take the chemical test, such evidence also is admissible notwithstanding article I, section
9. Westra does not attack the driver’s license suspension on any basis other than the
admissibility of his chemical test.
 22

#18–1050, Westra v. Iowa Dep’t of Transp.

WIGGINS, Justice (dissenting).

I respectfully dissent. I think this case presents an important point

of law regarding prosecutorial conduct.

In a recent case, we found the state could not dismiss a case in order

to avoid an adverse ruling on a motion to suppress. State v. Taeger, 781

N.W.2d 560, 567 (Iowa 2010). The rationale for that decision is that the

prosecutor cannot manipulate the system in order to ensure Iowa Code

section 321J.13(6) is not triggered. Id. Manipulation of the criminal

justice system undermines the integrity of the criminal justice system.

I see no difference in what the prosecutor did in this case than in

Taeger. Here the officer arrested Alex Westra. This began the criminal

process. The legislature amended the Code in 1999 with the intention to

allow a defendant to contest the stop in the criminal proceeding. 1999

Iowa Acts ch. 13, § 22 (codified as amended at Iowa Code § 321J.13(6)

(2017)). The legislature did not anticipate the prosecutor would

manipulate the system. The prosecutor not filing the information deprived

Westra of his right to contest the stop in the criminal case. This

manipulation by the prosecutor is no different from the manipulation in

Taeger. See 781 N.W.2d at 566–67. Accordingly, I would allow Westra to

attack the stop in the administrative proceeding to preserve the integrity

of the judicial system and carry out the intent of the legislature.
 23

#18–1050, Westra v. Iowa Dep’t of Transp.

APPEL, Justice (dissenting).

I respectfully dissent. The majority opinion in its very first

paragraph starts out on the wrong foot when it declares that the question

in this case is whether we are going to reverse direction in light of Fourth

Amendment precedent. But that is not the question at all. The question

is whether Fourth Amendment precedent is sufficiently well-reasoned for

us to follow the Fourth Amendment approach under Iowa constitutional

law.

Article I, section 8 of the Iowa Constitution provides,

The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable seizures and
searches shall not be violated; and no warrant shall issue but
on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons and things to be seized.

Iowa Const. art. I, § 8. This provision of the Iowa Constitution is perhaps

the most important provision of our Bill of Rights protecting Iowans from

an authoritarian state. Early cases emphasized its protean character.

Modern pragmatic revisionists have sought, however, to dilute the strength

of search and seizure protections and to expand the scope of state

authority to search and seize. While in recent years we have resisted such

revisions, the majority opinion in this case is a step in the wrong direction.

Here is why.

I. As an Integral Part of our State Constitution’s Protection
Against Unlawful Search and Seizures, the Exclusionary Rule Applies
in Driver’s License Revocation Cases.

A. Constitutional Footing of Exclusionary Rule. First, we have

rightly held that the exclusionary rule for evidence seized in violation of

article I, section 8 is “an integral part of [the] state constitution’s protection
 24

against unreasonable searches and seizures.” State v. Cline, 617 N.W.2d

277, 285 (Iowa 2000), abrogated on other grounds by State v. Turner, 630

N.W.2d 601, 606 n.2 (Iowa 2001). In Iowa, then, the exclusionary rule is

substantive constitutional doctrine.

There is substantial support for the holding in Cline that the

exclusionary rule is an integral part of substantive constitutional doctrine

in Iowa law. In Reifsnyder v. Lee, 44 Iowa 101, 102 (1876), we explained

in a civil forfeiture proceeding that a party subject to an illegal search

should be restored to the party’s position prior to the search. The notion

in Reifsnyder is that a party is entitled to a restorative remedy of being

returned to the party’s position prior to the constitutional violation. See

id. Later, in State v. Height, 117 Iowa 650, 661, 91 N.W. 935, 938 (1902),

we noted that the search and seizure principles were subject to “a broad

and liberal interpretation for the purpose of preserving the spirit of

constitutional liberty.” Finally, in State v. Sheridan, 121 Iowa 164, 168,

96 N.W. 730, 731 (1903), the court declared that to use illegally seized

evidence to secure a conviction would “emasculate the constitutional

guaranty, and deprive it of all beneficial force or effect in preventing

unreasonable searches and seizures.” 3

For decades, there was a similar approach under the Fourth

Amendment. In Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341,

346 (1914), overruled in part by Mapp v. Ohio, 367 U.S. 643, 645–55, 81

S. Ct. 1684, 1691 (1961), the Supreme Court unanimously held that

private papers obtained through an unconstitutional search could not be

used in a criminal prosecution. In Weeks, Justice Day emphasized that

3To be sure, in State v. Tonn, 195 Iowa 94, 100–01, 191 N.W. 530, 533 (1923), the

court, over strong dissent, abandoned the exclusionary rule in a search and seizure case.
The approach in Tonn was, of course, rejected in Cline in favor of our earlier precedent.
617 N.W.2d at 291, 293.
 25

the Fourth Amendment imposed on judges as well as executive officials

“limitations and restraints as to the exercise of [their] power and

authority.” Id. at 392, 34 S. Ct. at 344. Further, Justice Day declared

that the limitations and restraints “forever secure the people, their

persons, houses, papers, and effects, against all unreasonable searches

and seizures under the guise of law.” Id. Justice Day further emphasized

that the fruits of illegal searches “should find no sanction in the judgments

of the courts, which are charged at all times with the support of the

Constitution.” Id.

As scholars have pointed out, the language of Weeks makes clear

that the Fourth Amendment imposes obligations on judges, that they have

a duty to give full force and effect to the rights secured by the Amendment

for both innocent and guilty persons, and that the tendency of officials to

violate the Fourth Amendment should find no approval in the courts. See

Tracey Maclin, The Supreme Court and the Fourth Amendment’s

Exclusionary Rule 11–12 (2013); Thomas K. Clancy, The Fourth

Amendment’s Exclusionary Rule as a Constitutional Right, 10 Ohio St. J.

Crim. L. 357, 358–59 (2013).

Similarly, in Silverthorne Lumber Co. v. United States, 251 U.S. 385,

392, 40 S. Ct. 182, 183 (1920), Justice Oliver Wendell Holmes declared in

strong, unequivocal language,

The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so
acquired shall not be used before the Court but that it shall
not be used at all.

Holmes thus believed not only that courts should not be tainted with

unconstitutionally obtained evidence, but that it should not be used for

any purpose.
 26

And in Mapp, 367 U.S. at 649, 81 S. Ct. at 1688, the Supreme Court

emphasized the constitutional nature of the exclusionary rule. According

to Mapp, the exclusion of evidence under search and seizure law was a

rule “of constitutional origin.” Id.; see also Cline, 617 N.W.2d at 284.

Further, the Mapp Court emphasized that its decision “gives to the

individual no more than that which the Constitution guarantees him.” 367

U.S. at 660, 81 S. Ct. at 1694.

By declaring the exclusionary rule as part of the substance of

article I, section 8, we have squarely and firmly rejected the unfortunate

innovations of search and seizure doctrine introduced to the Fourth

Amendment by the United States Supreme Court in United States v.

Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974). In Calandra, the

Supreme Court, inconsistent with decades of past federal precedent,

downgraded Fourth Amendment protections by declaring that the

exclusionary rule was merely “a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deterrent effect

. . . , rather than a personal constitutional right of the party aggrieved.”

Id. As noted by one commentator, by emphasizing the deterrence function

exclusively, the Supreme Court’s approach “generates an enormous

pressure for reduction of the scope of the rule” through cost–benefit type

of analysis. See James Boyd White, Forgotten Points in the “Exclusionary

Rule” Debate, 81 Mich. L. Rev. 1273, 1281 (1983).

By describing the exclusionary rule as a substantive part of our

constitutional protections in Cline, we recognized that constitutional

cement protected it from being washed away based on transient pragmatic

concerns that cannot be permitted to overrun our permanent

constitutional regime. 617 N.W.2d at 285. Our approach is consistent

with other courts. See, e.g., Dorsey v. State, 761 A.2d 807, 818 (Del. 2000)
 27

(“[T]he efficient prosecution of criminals cannot justify a deliberate

invasion of the right of the citizen to be made secure against the violation

of specific constitutional guarantee’s . . . .”) (quoting Rickards v. State, 77

A.2d 199, 205 (Del. 1950)); State v. Guzman, 842 P.2d 660, 672 (Idaho

1992) (explaining that the exclusionary rule is a constitutionally mandated

remedy for illegal searches and seizures); State v. Eserjose, 259 P.3d 172,

178 (Wash. 2011) (en banc) (noting that state exclusionary rule

accomplishes “ ‘its paramount concern [of] protecting an individual’s right

of privacy’ . . . by closing the courtroom door to evidence gathered through

illegal means” (quoting State v. Afana, 233 P.3d 879, 884 (Wash. 2010) (en

banc))).

B. The Exclusionary Rule in Iowa is a Personal Remedy.

Second, the exclusionary rule in Iowa has long been held to provide a

remedy for a constitutional violation. In Reifsnyder, we emphasized that

under our search and seizure law, the parties should be returned to the

position they were before the unconstitutional conduct. 44 Iowa at 102.

In Cline, we emphasized that the exclusionary rule was a remedy for a

constitutional violation. 617 N.W.2d at 289. We emphatically rejected the

notion in United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3412

(1984) (quoting Calandra, 414 U.S. at 348, 94 S. Ct. at 620), that the

exclusionary rule was merely “a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deterrent effect,

rather than a personal constitutional right.” Cline, 617 N.W.2d at 289.

The notion that article I, section 8 vests personal rights, of course,

is also clear by the language of the provision: “The right of the people to be

secure in their persons, houses, papers and effects, . . . .” Iowa Const. art.

I, § 8; see Morgan Cloud, A Conservative House United: How the Post-
 28

Warren Court Dismantled the Exclusionary Rule, 10 Ohio St. J. Crim. L.

477, 480 (2013).

C. The Exclusionary Rule in Iowa Protects the Integrity of the

Judiciary. Third, we have emphasized, among other things, that the

exclusionary rule is supported by the need to protect the integrity of the

judiciary from using unlawfully obtained evidence to support its

judgments. In Cline, we noted, “Judges would become accomplices to the

unconstitutional conduct of the executive branch if they allowed law

enforcement to enjoy the benefits of the illegality.” 617 N.W.2d at 290. In

State v. Hamilton, 335 N.W.2d 154, 158 (Iowa 1983), we emphasized that

tainted evidence must be excluded because exclusion “protect[s] the

integrity of the judiciary.” Our approach in Cline thus had a solid pedigree

in Iowa caselaw, but also in federal caselaw prior to reconstruction of

Fourth Amendment doctrine that occurred in Calandra. See, e.g., Elkins

v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1447 (1960) (referring

to the “imperative of judicial integrity”); Weeks, 232 U.S. at 392, 34 S. Ct.

at 344; see also Robert M. Bloom & David H. Fentin, “A More Majestic

Conception”: The Importance of Judicial Integrity in Preserving the

Exclusionary Rule, 13 U. Pa. J. Const. L. 47, 47 (2010); Andrew E. Taslitz,

Hypocrisy, Corruption, and Illegitimacy: Why Judicial Integrity Justifies the

Exclusionary Rule, 10 Ohio St. J. Crim. L. 419, 474 (2013).

This case involves action of an administrative agency. Of course,

Holmes has the answer to whether illegally obtained evidence may be used

in this kind of proceeding: No! Silverthorne Lumber, 251 U.S. at 392, 40

S. Ct. at 183. In any event, even if this case involves a decision by an

administrative agency in the first instance, there is a right of appeal to the

courts arising out of final agency action. The need to maintain the integrity
 29

of the courts by refusing to consider unconstitutionally obtained evidence

therefore applies in this case.

D. Inapplicability of Westendorf. In support of its position, the

State cites Westendorf v. Iowa Department of Transportation, 400 N.W.2d

553 (Iowa 1987), superseded by statute as recognized by Brownsberger v.

Department of Transportation, 460 N.W.2d 449, 450–51 (Iowa 1990).

Westendorf, however, involved a challenge under the Fourth Amendment

and not under the Iowa Constitution. Id. at 556. As a result, the

Westendorf court was bound to follow the diluted post-Calandra federal

precedents. See id. at 556–57. In striking contrast to Cline, the

Westendorf court did not treat the exclusionary rule as part and parcel of

the Fourth Amendment, did not regard the search and seizure provisions

as providing a personal remedy, and did not cite judicial integrity as an

important concern. 4 See id.

The method of Fourth Amendment analysis in Westendorf is

completely different from the analysis of article I, section 8 under Cline. In

Cline, we drew upon traditional approaches, while Westendorf relied on

recent policy-driven innovations in interpretation of the Fourth

Amendment by the United States Supreme Court.
E. Application of Exclusionary Rule in Civil Contexts. As noted

by Professor LaFave, courts have often applied the exclusionary rule for

4In addition, Westendorf emphasized that there would be “little force as a deterrent
of unlawful police action because the department does not control the actions of local
police officers.” 400 N.W.2d at 557. In this case, however, the unlawful stop was not
made by the police, but by employees of the Iowa Department of Transportation, the very
same agency seeking to revoke Westra’s driver’s license. As noted by LaFave, even based
on Calandra, “the argument for exclusion is most compelling when the administrative
agency in question has an investigative function and investigative personnel of that
agency participated in the illegal activity for the purpose of providing information to
support administrative proceedings against the suspect.” 1 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 1.7(f), at 340 (5th ed. 2012). Thus, even
under federal law, the precedential value of Westendorf is doubtful for the present case.
 30

search and seizure violations in administrative settings. According to

LaFave,

Courts have held or at least assumed that the
exclusionary rule is applicable in a wide variety of
administrative proceedings, including FTC hearings to
uncover discriminatory pricing practices, SEC proceedings,
OSHA proceedings, proceedings before the public utilities
commission to terminate phone service because of illegal use,
NLRB hearings concerning labor controversies, immigration
hearings, hearings to terminate a public employee’s
government service, hearings to suspend or revoke a license
to practice a profession or to sell liquor, hearings to suspend
or revoke a driver’s license, and hearings to suspend or expel
a student from a public high school or a state university.

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

Amendment § 1.7(f), at 335–36 (5th ed. 2012) (emphasis added) (footnotes

omitted).

It is not surprising that a number of courts have applied the

exclusionary rule in driver’s license settings. For instance, in State v.

Lussier, the Supreme Court of Vermont stated in a driver’s license context,

Evidence obtained as the result of constitutional violations by
law enforcement officers may not be admitted at trial as a
matter of state law because doing so “eviscerates our most
sacred rights, impinges on individual privacy, perverts our
judicial process, distorts any notion of fairness, and
encourages official misconduct.”

757 A.2d 1017, 1025 (Vt. 2000) (quoting State v. Badger, 450 A.2d 336,

349 (Vt. 1982)). The Vermont court upheld exclusion “to protect the core

value of privacy” reflected in the search and seizure provisions of the

Vermont Constitution. Id. at 1026–27.

In addition, the Vermont court emphasized the need “to promote the

public’s trust in the judicial system.” Id. Further, the Vermont court

emphasized that the focus of any analysis “should be on the individual

constitutional rights at stake.” Id. at 1025. These observations are
 31

consistent with the approach taken by this court in Cline under article I,

section 8 of the Iowa Constitution.

Similarly, in Williams v. Ohio Bureau of Motor Vehicles, the Ohio

court, noting that the exclusionary rule applied in civil forfeiture

proceedings, held that a lawful arrest, including a constitutional stop,

must take place before a refusal to submit to a test triggers a license

suspension. 610 N.E.2d 1229, 1231 (Ohio Mun. Ct. 1992); see also

Watford v. Ohio Bur. of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App.

1996) (“[A] lawful arrest, including a constitutional stop, must take place

before a refusal to submit to chemical tests . . . triggers a license

suspension.”). In People v. Krueger, 567 N.E.2d 717, 722 (Ill. App. Ct.

1991), the Illinois appellate court noted that “a suspension may not be

predicated on the fruits of unconstitutional police activity.” Although the

Illinois court rested its decision on statutory interpretation, the court’s

interpretation was powered by constitutional concerns. Id.; see also

Whisenhunt v. State Dep’t of Pub. Safety, 746 P.2d 1298, 1298 (Alaska

1987) (analyzing rationale for exclusion in statutory context); Pooler v.

Motor Vehicle Div., 755 P.2d 701, 703–04 (Or. 1988) (en banc) (same).

There is, of course, contrary authority in other states as well. Unlike

the case in Iowa, many of these jurisdictions have adopted the eviscerating

approach of Calandra as part of their local jurisprudence. See, e.g., Powell

v. Sec’y of State, 614 A.2d 1303, 1307 (Me. 1992) (stating purpose of

exclusionary rule was to deter police misconduct); Riche v. Dir. of Revenue,

987 S.W.2d 331, 333 (Mo. 1999) (en banc) (same). These cases do not

embrace the Iowa view that the exclusionary rule is part of the substance

of the constitutional provision, that it provides a remedy for the person

subject to unconstitutional conduct, and that it protects the integrity of

the courts.
 32

F. Summary. Iowa search and seizure law under article I, section

8 of the Iowa Constitution has followed a materially different analytic

underpinning than the recent innovations of the United States Supreme

Court under the Fourth Amendment. In my view, the principles of our

search and seizure law have application in the context of a driver’s license

revocation.

II. Constitutionality of Unauthorized Search by Government
Agent Under Article I, Section 8 of the Iowa Constitution.

I now consider the key question in this case and the determinative

question in the majority opinion, namely, whether an unauthorized search

is an unconstitutional search under article I, section 8 of the Iowa

Constitution. This is a close issue. As the majority recognizes, the

proposition has been embraced by a number of courts. See, e.g., State v.

Cuny, 595 N.W.2d 899, 903 (Neb. 1999) (stating stop and detainment

unlawful where officer had no statutory authority and requiring

suppression of evidence in criminal proceeding under both Fourth

Amendment and Nebraska Constitution); State v. Brown, 39 N.E.3d 496,

502 (Ohio 2015) (noting that Ohio law is more protective than federal law

and holding that stop without statutory authority violated search and
seizure clause of Ohio Constitution); State v. Barker, 25 P.3d 423, 425–26

(Wash. 2001) (en banc) (stating probable cause alone does not establish

authority to arrest under Washington Constitution and requiring

suppression of evidence); see also Commonwealth v. Hernandez, 924

N.E.2d 709, 712–13 (Mass. 2010) (noting that Massachusetts, like Iowa,

rejects the good-faith exception to the exclusionary rule). Other courts,

however, have come to the opposite conclusion. See, e.g., State v. Green,

354 P.3d 446, 449–51 (Idaho 2015) (noting that similarity of language and

purpose does not require the court to follow Fourth Amendment
 33

jurisprudence but finding it persuasive in this case); State v. Gates, 145

So. 3d 288, 304 (La. 2014) (stating that stop outside officer’s jurisdiction

does not require suppression of evidence); State v. Keller, 396 P.3d 917,

925–26 (Or. 2017) (holding unauthorized stop does not give rise to

constitutional violation under search and seizure provisions of Oregon

Constitution under all the facts and circumstances of the case).

To me, the better view is that searches and seizures by government

officials are unlawful unless government officials have authority to

conduct them. As noted by the Washington Supreme Court in Barker, the

search and seizure provision of the Washington Constitution “is not a

source of authority of law to arrest or stop and detain a person in

Washington. There must be some other source of authority of law for a

constitutional warrantless arrest.” 25 P.3d at 425. Here, there is no

source of authority for the arrest. As a result, a constitutional violation

under article I, section 8 of the Iowa Constitution is present and the

evidence should be suppressed.

I close by noting the narrowness of the holding in this case. The

holding in the majority opinion is that where a government official acting

without authority executes a stop based on reasonable suspicion of

intoxicated driving and administers DUI testing, the evidence may be

admitted in a driver’s license revocation proceeding without violating

article I, section 8 of the Iowa Constitution.

Wiggins, J., joins this dissent.