STATE of Iowa, Appellee, v. Christine Ann KERN, Appellant.
No. 11-1208.
Supreme Court of Iowa.
May 24, 2013.
831 N.W.2d 149
Based on our de novo review, we hold that a service is “covered” within the meaning of section 514C.3B only if it is actually reimbursed to some extent under the dental plan. Hence, an insurer may only impose a maximum fee on a service when a reimbursement has been provided for that service.
IV. Conclusion.
For the foregoing reasons, we conclude the district court erred in upholding the Commissioner‘s declaratory order. We accordingly reverse the district court‘s ruling and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Richard J. Bennett Sr. and Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County Attorney, and Joseph D. Crisp and Andrea M. Petrovich, Assistant County Attorneys, for appellee.
CADY, Chief Justice.
In this appeal, we primarily consider the constitutionality of a search of the home of a parolee that uncovered evidence used to prosecute and convict the parolee of numerous drug offenses. In doing so, we must determine if the search was justified by the doctrines of consent, special needs, exigent circumstances, community caretaking, or a general balancing of the governmental interests served by the search against the privacy interest of the parolee. We also consider the sufficiency of the evidence to support the charges. On our review, we find the search of the home and the seizure of the evidence violated
I. Background Facts and Proceedings.
Christine Kern was a parolee living in Des Moines. She was granted parole on
On November 3, 2010, Staci Huisman, a child assessment worker with the Iowa Department of Human Services (DHS), received an anonymous complaint that marijuana was being grown and processed in the house where Kern resided. The complaint also claimed marijuana was used and sold in the house, and these circumstances endangered Kern‘s sixteen-year-old daughter and her infant grandchild who occasionally stayed in the house. At the time, Kern lived in the home with her boyfriend, Sean Grant.
On November 5, 2010, Huisman investigated the complaint by making a home visit with the assistance of two police officers. The police routinely assist the DHS in their investigation of drug complaints in order to protect the safety of the investigator. The police presence also offers an opportunity for them to request consent to search the premise for illegal substances.
Huisman met narcotics police officers, Mark Chance and Matthew Jenkins, near Kern‘s residence, and they proceeded to the residence. Kern responded to a knock on the door, and she allowed Huisman and the officers to enter the home. Grant was also present. The officers felt Grant purposely stood between them and the interior of the home to prevent them from entering further into the home. Huisman explained the nature of the complaint and asked for consent to search the residence. Kern and Grant denied the allegations and denied consent to search the residence. Detective Jenkins believed the conduct of Kern and Grant was “defensive.”
Huisman explained she would need to remove the children from the residence if she was unable to search the home. Kern still refused to give consent. Huisman spoke with Kern‘s daughter and explained the situation and the allegations against Kern and Grant.1
Huisman then removed the children and left the residence with the officers. After traveling a short distance, Huisman advised the officers that Kern was a parolee. Jenkins called Sergeant Brandon Garvey of the probation and parole office and asked him to assist in searching the house pursuant to the standard consent provision of parole agreements.
Garvey told Jenkins he was unable to immediately assist the law enforcement officers, but verified Kern was on parole and that she had signed a parole agreement containing the consent-search clause in paragraph P. Garvey also gave Jenkins permission to conduct the search on his behalf.
Chance and Jenkins returned to Kern‘s residence. Kern appeared to be walking to her car as the officers arrived, but she returned to the house when she saw the officers. The officers informed Kern and Grant they intended to search the house because Kern was a parolee and had con-
Jenkins remained with Kern and Grant while Chance began the search. Garvey, the parole officer, arrived shortly after the search started. In the basement, Chance found three separate marijuana growing operations consisting of numerous marijuana plants. He then accompanied Grant to a bedroom he shared with Kern. The bedroom contained guns, as well as marijuana. The marijuana was located in a jar on a dresser and a jar on a bed stand. Marijuana was also found in large quantities in the dining room. The dining room appeared to serve as a place to dry marijuana. Plants were strewn about the room, and two large glass jars of dried marijuana were in the room. More glass jars of marijuana were located in a dresser in the living room. Kern and Grant were arrested. Grant immediately took full responsibility for the marijuana operation and said Kern had nothing to do with it.
The State charged Kern with four crimes: (1) conspiracy to manufacture a controlled substance in violation of
Prior to trial, Kern joined Grant‘s motion to suppress the marijuana as evidence at trial. She argued it was obtained in violation of her constitutional rights under the
In a hearing on the motion, Chance and Jenkins testified that Kern‘s refusal to grant permission to search her house suggested to them that drugs were located in the house. The State argued Kern waived her rights to object to the search by signing a parole agreement containing paragraph P. The State also asserted the search was justified by several recognized exceptions to the warrant clauses of the
The district court found Kern gave “advance consent to search her property without a warrant or without reasonable cause” by signing the parole agreement. Additionally, it upheld the search as reasonable based on the DHS complaint combined with the police officer‘s suspicion derived from the conduct of Kern and Grant during the initial encounter. The court also found the search was justified under exigent circumstances and the community caretaking function.
In a subsequent trial on the minutes of testimony, the district court found Kern guilty of all four counts. It imposed judgment and sentence, and Kern appealed.
II. Issues Presented.
Kern raised two issues on appeal. First, she asserted there was insufficient evidence to support a finding of guilt beyond a reasonable doubt on each of the crimes charged. Second, Kern asserted the search of her home was in violation of her constitutional search and seizure rights under the
III. Sufficiency of the Evidence.
A. Scope and Standard of Review. We first address whether the State introduced sufficient evidence for a fact finder to find Kern guilty beyond a reasonable doubt. We address this issue first because the Double Jeopardy Clause would not permit a retrial of the charges if there was insufficient evidence of guilt presented at trial. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290, 102 L.Ed.2d 265, 272-73 (1988)).
We review challenges to the sufficiency of the evidence presented at trial for correction of errors of law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). The essential question before the court on a challenge to sufficiency of the evidence is whether there was substantial evidence to support a guilty verdict beyond a reasonable doubt. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).
We view the evidence presented at trial in the light most favorable to the State but consider all the evidence in the record, not just the evidence favoring the State. Id. Moreover, “[t]he evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).
B. Discussion.
unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.
While section 124.401(1) prohibits a variety of conduct, it essentially defines one prohibition that can be violated in a number of ways. See State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993) (discussing
1. Conspiracy to manufacture a controlled substance in violation of
To convict Kern of conspiracy to manufacture a controlled substance, the State was required to show:
- the defendant agreed with one or more persons that one or both of them would manufacture or attempt to manufacture [marijuana], (2) the defendant entered into such an agreement with the intent to promote or facilitate the manufacture of [marijuana], (3) one of the parties to the agreement committed an overt act to accomplish the manufacturing of [marijuana], and (4) the alleged coconspirator(s) was not a law enforcement agent or assisting law enforcement when the conspiracy began.
See State v. Fintel, 689 N.W.2d 95, 102 (Iowa 2004) (alterations added); see also
A conspiracy is essentially a criminal contract characterized “as a ‘concert of free wills,’ ‘union of the minds of at least two persons,’ and ‘a mental confederation involving at least two persons.‘” Speicher, 625 N.W.2d at 741-42 (quoting State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984)). Conspiracies are, by nature, clandestine affairs. Corsi, 686 N.W.2d at 219. Thus, direct evidence of an agreement to form a conspiracy is often absent, and in response, we have consistently allowed circumstantial evidence and inferences drawn from the circumstances to support a conviction on a conspiracy charge. Id.; accord State v. Blyth, 226 N.W.2d 250, 263 (Iowa 1975); Carlson, 203 Iowa at 93, 212 N.W. at 313. We have also said:
“An agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.”
State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (quoting 16 Am.Jur.2d Conspiracy § 10, at 204-05 (1998)).
Circumstantial evidence of an agreement must be based on more than suspicion. State v. Keyser, 257 Iowa 73, 79, 130 N.W.2d 701, 704 (1964). Similarly, “circumstantial evidence that proves mere presence at the scene of the crime or association with those involved in the crime is not sufficient to show an agreement.” Corsi, 686 N.W.2d at 219. Mere presence or general association creates no more than “conjecture and speculation” of criminal complicity. Speicher, 625 N.W.2d at 743.
However, the central location of the manufacturing process can be relevant to the element of an agreement. See Corsi, 686 N.W.2d at 220 (observing that defendant‘s commission of drug manufacturing in a codefendant‘s apartment supports an inference that the defendant had the apartment tenant‘s permission to conduct the illegal activity, which supports an inference that a conspiracy between them had been formed). In Corsi, we implicitly acknowledged the existence of an important inversion of our holding in Speicher that mere presence at the location of a crime or mere association with criminals was insufficient for a finding that the defendant formed an agreement. While the mere presence of a person on someone else‘s property where someone else is or has been manufacturing a controlled substance supports only conjecture of participation in the conspiracy, permission given by a property owner for others to maintain an obvious manufacturing operation throughout the premises would be strongly suggestive of a tacit agreement, at the very least. See id. at 220.
Indeed, our decision in Fintel which arose out of the same facts as Corsi, is instructive here. In Corsi, the defendant
Here, a rational fact finder could have inferred a tacit agreement between Kern and Grant. Even assuming Kern took no part in the actual manufacture of marijuana, there was evidence to show Grant maintained an extensive growing, drying, and selling operation throughout the home. Marijuana plants were found in the basement. A marijuana drying room existed on the main floor. Marijuana was found in jars in the bedroom Kern and Grant shared. Kern‘s daughter told the DHS officer a week after the search that she was well aware of Grant‘s narcotic use and sales. She similarly informed the DHS officer that Kern was also aware the marijuana was sold.
Accordingly, we conclude the extensive presence of a marijuana growing operation throughout the home and the obvious knowledge of the operation constituted substantial evidence upon which a rational fact finder could infer an agreement between the two occupants of the home wherein one occupant would promote or facilitate the other in the manufacture of a controlled substance by allowing the operation to take place in the residence. The operation was so extensive that Kern literally lived with the manufacturing process. Additionally, Grant needed cover to operate the illegal enterprise, and Kern provided that cover by permitting the residence to be used to manufacture marijuana. Our law only requires the existence of a tacit understanding to support a conspiracy, and this evidence was sufficient to infer such an understanding. We stress that mere knowledge by an owner or renter of a premise that a controlled substance is manufactured on their premises does not make an agreement. Rather, we simply hold that a fact finder relying on the evidence in this case could rationally find beyond a reasonable doubt that Kern intended to promote or facilitate the manufacturing of marijuana.
2. Possession of a controlled substance with intent to deliver in violation of
Under the statute, the State must prove the accused “‘exercised dominion and control over the contraband, had knowledge of the contraband‘s presence, and had knowledge the material was a narcotic.‘” State v. Dewitt, 811 N.W.2d 460, 474 (Iowa 2012) (quoting State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008)). “The location in which the substance is found guides our determination
To prove constructive possession, the State must show “the defendant had knowledge of the controlled substance as well as the authority or right to control it.” Id. Our seminal constructive possession case is State v. Reeves, 209 N.W.2d 18 (Iowa 1973). In Reeves, we said:
If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof.
Id. at 23.
Thus, constructive possession involves inferences. Yet, our law does not permit an inference to be drawn based only on the presence of drugs found in a jointly occupied premise, as opposed to the exclusive occupancy of a premises. See id. More proof is needed to draw the constructive possession inference. In addition to proof of immediate and exclusive possession of the place where drugs are found on a premises, we identified the nature of this additional proof as
- incriminating statements made by a person; (2) incriminating actions of the person upon the police‘s discovery of a controlled substance among or near the person‘s personal belongings; (3) the person‘s fingerprints on the packages containing the controlled substance; and (4) any other circumstances linking the person to the controlled substance.
In this case, only the fourth factor is implicated. We must decide if the presence of a vast marijuana growing operation in plain view throughout the home was enough additional proof to draw an inference of constructive possession of the marijuana found in a jointly occupied house.
We return to the basic meaning of dominion and control to answer this question. In the absence of actual possession, constructive possession requires the person to maintain control over the drugs or have the right to control the drugs. See Reeves, 209 N.W.2d at 23. This standard focuses on the “ability to maintain control.” Id. When the facts only show joint dominion and control over a premises, however, it is unfair to impute control over the drugs without more proof, such as immediate and exclusive access to the place where the drugs were found in the jointly occupied premises.
The broad rationale behind this approach involves a balance between two competing considerations. State v. Simpson, 528 N.W.2d 627, 636 (Iowa 1995) (Ternus, J., dissenting). Convictions for possession of drugs should be possible under the law, even though the defendant is not caught “red-handed,” but innocent bystanders in the wrong place at the wrong time must be protected from a conviction. Id. Our guideposts governing joint occupancy strike this balance. Id. Here, the question is whether the vast nature of the drug operation within the house was enough additional proof to provide an in-
In this case, there was no evidence that Kern was more than an agreeable bystander to a vast operation she permitted to take place. An inference that Kern conspired with Grant for him to use the house to grow and process marijuana cannot be extended to also support an inference that Kern exercised dominion and control over the marijuana, without some evidence pointing to dominion and control. Conspiracy and possession are independent concepts. Without more evidence than the presence of the marijuana operation, an inference of dominion and control would only be based on the presence of the marijuana in the house. Our long-standing rule does not permit an inference of dominion and control based only on the presence of drugs in a jointly occupied premises. Reeves, 209 N.W.2d at 23. Thus, there was insufficient evidence presented at trial that Kern possessed marijuana.
3. Manufacturing a controlled substance in violation of
The district court relied on Kern‘s knowledge of the manufacturing operation in her home to infer she manufactured the marijuana. However, the Iowa Code contemplates manufacturing as an active concept, requiring more than the mere passive knowledge of the defendant. It requires proof of an affirmative act of manufacturing, which the State failed to produce.
“Manufacture” is defined in
the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container....
Two cases augment this view. In Casady, we observed that manufacturing a controlled substance and conspiring to manufacture a controlled substance represent two alternative ways to violate section 124.401(1). 597 N.W.2d at 807. We said,
[t]he first alternative means of violating the statute is the actual manufacture of drugs, but the second alternative includes a conspiracy to manufacture it. Contrary to Casady‘s argument, it is not necessary for the State to prove the second alternative by also proving the first. While the State must show an overt act toward the accomplishment of the conspiracy, it did not have to prove the completed act.
Id. (citations omitted). In State v. Royer, 632 N.W.2d 905 (Iowa 2001), we held that a defendant could not be convicted of manufacturing a controlled substance without actually producing the threshold amount of a controlled substance. 632 N.W.2d 905, 909 (Iowa 2001). Implicit in this conclusion was the assump-
We acknowledge our court of appeals has held that a conviction for manufacturing a controlled substance can be based on evidence that the defendant “was able to claim immediate dominion over the process, or maintained or shared exclusive dominion over the process.” State v. Spivie, 581 N.W.2d 205, 208 (Iowa Ct.App. 1998). However, Spivie was predicated on Rudd, and its progeny, which permitted an inference of dominion and control based on shared, exclusive dominion. See State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990). In Webb, we overruled our holding in Rudd to the extent that its pronouncements concerning constructive possession were contrary to our constructive-possession principles set out in Reeves. Webb, 648 N.W.2d at 79. Thus, Spivie is no longer good law to the extent that its holding would apply to jointly occupied premises. Instead, Webb instructs that joint possession of a premises where the manufacturing of a controlled substance occurs would not alone support an inference that a joint occupant participated in the manufacturing of the controlled substance. Id.
Accordingly, there was insufficient evidence to support Kern‘s conviction for manufacturing a controlled substance in violation of
4. Failure to possess a tax stamp in violation of
5. Disposition. The conviction for conspiracy was supported by sufficient evidence at trial, while the remaining convictions were not supported by substantial evidence. These three convictions must be dismissed. Thus, we proceed to consider the claim asserted by Kern that the marijuana and other evidence was illegally seized and should have been suppressed at trial. Because we ultimately agree with Kern that the search of her home violated
IV. Constitutionality of the Search of Kern‘s Home.
A. Scope and Standard of Review. Kern argues the search of her home violated the guarantees of the
Notes
be justified because Kern prospectively consented to warrantless, suspicionless searches by parole or other law enforcement officers when she signed a parole agreement containing a provision that purportedly granted consent to conduct such searches. In the alternative, the State argues that a special need exists justifying departure from the warrant and probable cause requirements of the
“We review claims the district court failed to suppress evidence obtained in violation of the federal and state constitutions de novo.” Dewitt, 811 N.W.2d at 467. When presented with such a claim, “‘we make an independent evaluation [based on] the totality of the circumstances as shown by the entire record.‘” State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting State v. Krogmann, 804 N.W.2d 518, 522 (Iowa 2011)). “Each case must be evaluated in light of its unique circumstances.” Id. at 272 (quoting Krogmann, 804 N.W.2d at 523).
Kern brings her claim under both the
B. Merits. “We employ a two-step approach to determine whether there has been a violation of...
As we have recounted in other cases, the
The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care by every court in the English-speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.
The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidences of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of such warrant. At the closed door of the home, be it palace or hovel, even bloodhounds must wait till the law, by authoritative process, bids it open.
123 Iowa 368, 371-72, 98 N.W. 881, 882 (1904).
Under the Supreme Court‘s
Thus, we proceed to consider the constitutionality of the search of her home. See Lowe, 812 N.W.2d at 567-68. This is a broad question, and it implicates several doctrines of constitutional search and seizure law. We address them in turn.
1. Consent. The State argues Kern prospectively consented to warrantless searches by signing a parole agreement containing a consent-to-search provision. Essentially, the State argues Kern and the State entered into a contract that establishes consent under Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, 863 (1973), and Zap v. United States, 328 U.S. 624, 628-29, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477, 1482 (1946), judgment vacated by 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947).
In State v. Baldon, 829 N.W.2d 785, 802-03 (Iowa 2013), we rejected this argument and held that a consent-to-search provision in a parole agreement did not establish consent to search. Accordingly, we conclude paragraph P of Kern‘s parole agreement did not justify the search of Kern‘s home.
2. Special needs. The State asserts the search of Kern‘s home was justified because Iowa‘s maintenance of a parole system presents “exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720, 741 (1985) (Blackmun, J., concurring); cf. Griffin v. Wisconsin, 483 U.S. 868, 875-76, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709, 718-19 (1987) (holding that Wisconsin‘s maintenance of a probation system constitutes a special need, justifying departure from the ordinary warrant and probable cause requirements of the
a. Fundamental concepts of special-needs searches as developed by the United States Supreme Court under the
b. Iowa Supreme Court cases dealing with searches of parolees and probationers under
Evaluating the case, we rejected theories of parole that diluted or stripped a parolee‘s constitutional search and seizure protections. Id. at 536-38. We observed these theories were based on an unpersuasive “socio-juristic rationalization, i.e., protection of the public and constructive custody.” Id. at 536. We noted that, under
Interestingly, the parole officer in Cullison was engaged in a type of parole supervision, often contemplated to be within the context of the special-needs doctrine today, at least at the outset of the case. See id. at 534; cf. Griffin, 483 U.S. at 875, 107 S.Ct. at 3169, 97 L.Ed.2d at 718. Dissents from Justices Larson and Stuart argued that the operation of a parole system and the need to carry out the duties of a parole officer justified the search. See Cullison, 173 N.W.2d at 542-44 (Larson, J., dissenting); id. at 544 (Stuart, J., dissenting). Accordingly, these dissents seem to be grounded on a special need for parole officers to conduct warrantless searches. Justice Larson argued the parole system renders parole searches different from police searches: it gives parole officers the authority to supervise the parolee, and the parole officer‘s special status makes searches of parolees reasonable that would be unreasonable if conducted in relation to a person not on parole. Id. at 542-44 (Larson, J., dissenting). Because Holmes had a reasonable belief Teeters was violating parole, the dissent concluded the search was acceptable. Id. at 544. Justice Stuart‘s dissent argued that searches of parolees present an exception to the warrant requirement. Id. (Stuart, J., dissenting).
Impliedly answering the dissent, our majority in Cullison stated something germane to the resolution of this case: “[T]he fact that a criminal accused is also a parolee should not, as to a new and separate crime, destroy or diminish constitutional safeguards afforded all people. If convicted, the sentence will be in addition to that previously imposed.” Id. at 538. As we strive to remain faithful to more than forty years of Iowa precedent, we acknowledge that we rejected the notion that parole supervision could justify a later, full-scale search for evidence of a new crime.
We recently renewed our consideration of searches of parolees in Ochoa, where a police officer searched a parolee and his motel room solely on the basis of Ochoa‘s parolee status. 792 N.W.2d at 262-63. We held the search of Ochoa and his motel room was unreasonable, specifying that parolee status cannot alone provide the basis for a full-scale search. Id. at 291. In doing so, we rejected at least one recent case from the United States Supreme Court, Samson, which effectively rendered nugatory any constitutional search and seizure protections enjoyed by probationers and parolees. Ochoa, 792 N.W.2d at 291; see also Samson, 547 U.S. at 852, 126 S.Ct. at 2199, 165 L.Ed.2d at 259. Yet, the case did not present an opportunity to specifically consider whether Iowa‘s parole system presented a special need to conduct a search without a warrant or probable
The concurring opinion in Ochoa discussed special-needs searches and suggested the limitation maintained in the majority opinion is accomplished by the link between the asserted special need in the parolee context and the rationale supporting special-needs searches generally. Id. at 294-95 (Cady, J., concurring specially). While legitimate reasons exist for maintaining intensive supervision of parolees, it was observed that searches could only be legitimate when performed by a parole officer in the context of the parole mission. Id. at 294. Neither the reasons attached to the parole mission nor the identity of the search agent are sufficient alone to justify the search; rather, it is the “confluence” of these two facts that would create a valid special need. Id.
c. Academic commentary. Some academic commentary has been favorable to applying the special-needs theory to parolees and probationers. Indeed, while older theories such as the “act of grace” and “waiver” theories of parole have been rejected as unsound, commentators tend to agree with the states that hold parolees have a reduced expectation of privacy, thereby making certain intrusions on parolee privacy reasonable that would be unreasonable if directed at an ordinary person. 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.10(c), at 533 (2012) [hereinafter LaFave]. Other commentators disagree, however, and argue that, while compelling governmental interests may justify some particular intrusions in a special-needs context, generally undervaluing the parolee‘s privacy interests is inappropriate. Antoine McNamara, Note, The “Special Needs” of Prison, Probation, and Parole, 82 N.Y.U. L.Rev. 209, 243-46 (2007) [hereinafter McNamara]. These commentators argue that, like the municipal safety inspections at issue in Camara, the “only effective way” to ensure the rehabilitation of parolees and probationers is through a supervision regime that is not fully commensurate with ordinary constitutional search and seizure protections. Id. at 244; see also Welsh S. White, The Fourth Amendment Rights of Parolees and Probationers, 31 U. Pitt. L.Rev. 167, 183-84 (1969) [hereinafter White]; William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan. L.Rev. 553, 580-81 (1992); Note, Striking the Balance Between Privacy and Supervision: The Fourth Amendment and Parole and Probation Searches of Parolees and Probationers, 51 N.Y.U. L.Rev. 800, 831-35 (1976) [hereinafter Note].
At least one commentator has pointed out that widespread use of warrantless and suspicionless searches of parolees irresponsibly invades not only the rights of parolees, but their families as well. See Note, 51 N.Y.U. L.Rev. at 816-17. As the commentator stated,
Fourth Amendment protection will be diminished not only for parolees, but also for the family and friends with whom the parolee might be living. Those bystanders may find themselves subject to warrantless searches only because they are good enough to shelter the parolee, and they may therefore be less willing to help him—a sadly ironic result in a system designed to encourage reintegration into society. Moreover, the demeaning effect of arbitrary intrusions into the parolee‘s privacy will be reflected in the attitudes of his relatives and friends. As a result, the parolee will suffer diminished feelings of self-worth, making his rehabilitation more difficult. In addition, warrantless parole
Some commentators disagree, not with the application of the special-needs doctrine to parolees and probationers, but with the scope of searches considered acceptable under its rubric. See White, 31 U. Pitt. L. Rev. at 186-99. Thus, while increased use of frisks, drug tests, and house visits might be justifiable under a special-needs theory, full-scale searches—whether conducted by parole officers or general law enforcement officers—are not. Id. Stated differently: “If a parole or probation search does not further rehabilitation, then its sole purpose is law enforcement, and it cannot qualify for the special needs exception.” McNamara, 82 N.Y.U. L. Rev. at 244.
Professor White argued that parole officers will have somewhat greater leeway to search a parolee‘s home than an ordinary citizen‘s because some behavior of the parolee—such as drinking or changing residence without first obtaining approval from the parole officer—is prohibited by the parole agreement. White, 31 U. Pitt. L. Rev. at 196. Nonetheless, even in these situations, White would require the parole officer to obtain a warrant based on probable cause from a neutral judicial officer. Id. at 195-97. White thus disagrees with the Griffin Court, arguing that a neutral magistrate is in a better position to accommodate the rights of parolees and the concerns of the public. Id. at 196-97. The uncontrolled discretion of the parole officer is as much of a subject of legitimate worry as the uncontrolled discretion of general law enforcement officers. See id. LaFave5
Finally, some commentary has attacked the very concept of special-needs searches. For instance, it has been suggested that the special-needs doctrine developed by the United States Supreme Court in Camara and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is unworkable. See Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn. L. Rev. 383, 406-14 (1988). This line of thinking suggests that the probable cause requirement should be enforced through recognizing a distinction between initiatory and responsive searches and that a strict scrutiny standard should be applied to warrantless initiatory searches. See id. at 425-27, 436-38, 442-45.
d. Determination of the validity of the search of Kern‘s home under article I, section 8 of the Iowa Constitution.
While the landscape of the special-needs doctrine as articulated by the United States Supreme Court under the
But, even if we were to recognize the existence of a special-needs exception in the context of parole under the
In this case, the search failed to fit the special-needs rubric for two reasons. First, the search was significantly entangled with a larger law enforcement operation and primarily served general law enforcement goals, suggesting the special-needs rationale should not be available at all.6 See Ferguson v. City of Charles-
Accordingly, because we do not recognize the special-needs doctrine under article I, section 8 in this case, we decline to depart from forty years of Iowa precedent and justify the search of the Kern house under that doctrine. Even if we did, however, under the search and seizure protection afforded parolees under article I, section 8 of the Iowa Constitution, the doctrine would not be available to justify a search instigated and dominated by the needs and interests of law enforcement.
3. The community caretaking function. We next consider if the community caretaking function justified the search. On this issue, Kern does not suggest a standard under article I, section 8 of the Iowa Constitution that is different from the standard employed by the United States Supreme Court under the
The community caretaking function carried out by officers is an exception to the warrant requirement of the
We have observed in the past that “the community caretaking exception encompasses three separate doctrines: (1) the emergency aid doctrine, (2) the automobile impoundment/inventory doctrine, and (3) the ‘public servant’ exception noted in Cady.” See id. at 541; see also Mary E. Naumann, Note, The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 330-41 (1999). In cases such as this one, the first and third exceptions, which are very similar, are at issue. See id. To take advantage of the community caretaking exception in this context, the State must prove two things: First, the searching officer must be “actually motivated by a perceived need to render aid or assistance.” State v. Emerson, 375 N.W.2d 256, 259 (Iowa 1985) (citation and internal quotation marks omitted), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), as recognized by State v. Lyman, 776 N.W.2d 865, 872 (Iowa 2010). Second, the officer‘s motivation must be such that a “reasonable person under the circumstances would have thought an emergency had existed.” Id. (citation and internal quotation marks omitted).
At first glance, the community caretaking function does not primarily focus on searches. Rather, the exception most often works to authorize seizures. See, e.g., State v. Moore, 609 N.W.2d 502, 503-04 (Iowa 2000) (holding a park ranger‘s stop of a vehicle to urge them to slow down was reasonable); State v. Mitchell, 498 N.W.2d 691, 693-94 (Iowa 1993) (holding a trooper‘s stop of a vehicle with a burned-out taillight was reasonable). Cady, however, did involve a search of an automobile. 413 U.S. at 437, 93 S.Ct. at 2526, 37 L.Ed.2d at 712. The aim of the search in Cady, however, was not to search for evidence of any crime, but to search for defendant‘s service revolver after a car accident. Id. The defendant in Cady was a Chicago police officer who had been involved in a car accident. Id. The aim of the police, who believed Chicago police officers were required to carry their firearms at all times, was to remove the defendant‘s revolver from the vehicle before it was towed away. Id. In conducting the search, the police found some blood spatters in plain view, and the defendant later directed the police to the location of a body. Id. The community caretaking exception has similarly justified searches in Iowa cases. See, e.g., State v. Carlson, 548 N.W.2d 138, 142-43 (Iowa 1996) (holding entry into a home to search for a missing person, after the person‘s boyfriend gave conflicting information about the missing person‘s whereabouts, was reasonable under the emergency aid exception); State v. Kersh, 313 N.W.2d 566, 568-69 (Iowa 1981) (holding that officer was justified in opening a car door to check on the condition of the defendant, who was slumped over the wheel), abrogated on other grounds by State v. Lake, 476 N.W.2d 55, 56 (Iowa 1991).
Nevertheless, the exception does not apply in this case. The caretaking by the police in accompanying the DHS officer to Kern‘s home ended when the DHS officer and the police officers removed the
4. Exigent circumstances. The State further argues that exigent circumstances justified the warrantless search of Kern‘s home. Kern responds that nothing in the record supports application of the exigent-circumstances exception to the warrant requirement of the
An exception to the warrant requirement exists for a search “based on probable cause and exigent circumstances.” State v. Naujoks, 637 N.W.2d 101, 108 (Iowa 2001). To be clear, this exception only applies “when coupled with existing probable cause.” State v. Strong, 493 N.W.2d 834, 836 (Iowa 1992). “The standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched.” Naujoks, 637 N.W.2d at 108.
The exigent-circumstances exception includes a situation in which there is a “probability that, unless immediately seized, evidence will be concealed or destroyed.” Id. at 109. The exigent-circumstances exception is important to narcotics investigations because drugs are “easily destroyed.” See id. For example, in Strong, this court considered whether the involuntary pumping of a suspect‘s stomach to find evidence of cocaine, which was rapidly metabolized by the suspect‘s body, qualified as exigent circumstances sufficient to relieve the warrant requirement. 493 N.W.2d at 835. Importantly, the police actually saw the defendant orally ingest the cocaine, after which Strong admitted the materials he had just swallowed were cocaine. Id.
Turning to the case at hand, we first consider if the officers had sufficient evidence to support probable cause. The probable cause determination relied on five pieces of information. First, an anonymous tip had been given two days earlier to a DHS officer, which alleged a marijuana grow operation existed in Kern and Grant‘s home. Second, Kern and Grant generally refused consent to search during the first encounter. Third, Grant maintained a defensive posture to prevent the officers from going further into Kern‘s home during the first encounter. Fourth, Kern and Grant refused to give consent after the DHS investigator threatened to remove Kern‘s daughter and grandson
An anonymous tip, alone, does not ordinarily contain sufficient indicia of reliability to provide reasonable suspicion, let alone probable cause. See Florida v. J.L., 529 U.S. 266, 270-72, 120 S.Ct. 1375, 1378-79, 146 L.Ed.2d 254, 260-61 (2000). On the other hand, a significantly corroborated and verified anonymous tip has been held sufficient by the United States Supreme Court under the
Furthermore, neither the invocation of constitutional rights nor the refusal to grant consent to an officer to perform a search can be used alone to support either reasonable suspicion or probable cause. See State v. Maddox, 670 N.W.2d 168, 173 (Iowa 2003).9 In the words of the 10th Circuit:
Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine. These legal principles would be considerably less effective if citizens’ insistence that searches and seizures be conducted in conformity with
constitutional norms could create the suspicion or cause that renders their consent unnecessary.
United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998).
We agree. If such a refusal of consent or invocation of constitutional rights could supply officers with the requisite suspicion or cause to conduct a search, then citizens would be exposed to a dangerous catch-22 when officers request consent to conduct a search. If consent is given, the search occurs. If consent is refused, the officer may nevertheless conduct the search pursuant to the probable cause generated by the refusal. This is an unacceptable consequence under our constitutional framework.
We have similar doubts about the value of Grant‘s defensive posture as a factor in the probable cause determination. Furtive behavior may be a proper consideration. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576 (2000); United States v. Sokolow, 490 U.S. 1, 8-9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1, 10-11 (1989). But, a defensive posture by an occupant of a home in response to an intrusion by police is not indicative of probable cause of a crime. A homeowner may want personal matters within the privacy of the home protected from unwanted disclosure. The desire of a homeowner to keep police from entering beyond the threshold of the house during an unannounced visit is not probable cause the home contains evidence of a crime.
As to the parole status of Kern, Ochoa prohibits using Kern‘s status as a parolee to augment the suspicion held by the officers such that it alone could amount to probable cause. See 792 N.W.2d at 291.
Thus, we conclude the officers did not have probable cause to search the Kern home. Additionally, nothing about the circumstances of this case (other than the inherent destructibility of drugs) suggests that the circumstances were exigent. The DHS received the anonymous tip on November 3, but the home visit did not occur until November 5. Even on November 5, the only circumstances conveying exigency in the moment were Kern‘s walk to her car in the driveway and the officers’ conjecture that, by invoking her search and seizure rights, Kern was affirmatively hiding something.
While walking out to the car arguably raises some suspicion that destruction of evidence was imminent, and the United States Supreme Court has supported fairly conjectural applications of the exigent-circumstances exception before, see Illinois v. McArthur, 531 U.S. 326, 330-31, 121 S.Ct. 946, 949-50, 148 L.Ed.2d 838, 847 (2001), the instant case is distinguishable on two critical grounds. First, McArthur dealt not with an uncorroborated, anonymous tip, but rather the in-person assertion of the defendant‘s wife whose reliability was readily ascertainable. Id. at 329, 332, 121 S.Ct. at 949, 950, 148 L.Ed.2d at 846, 848. She could be “held responsible if her allegations turn[ed] out to be fabricated.” See J.L., 529 U.S. at 270, 120 S.Ct. at 1378, 146 L.Ed.2d at 260. Second, McArthur involved the comparatively minimal intrusion of refusing to allow the defendant to reenter his trailer home unsupervised while an officer obtained a warrant, see 531 U.S. at 329, 332, 121 S.Ct. at 949-50, 148 L.Ed.2d at 846, 848, while in this case the officers conducted a full-blown search of the defendant‘s home.
That is not enough either for probable cause or for a finding of exigent circumstances. Accordingly, we hold that exigent circumstances did not justify the warrantless search of Kern‘s home conducted in this case under both the
V. Conclusion.
We conclude no exception to the warrant requirement of
REVERSED AND REMANDED.
All justices concur except MANSFIELD and WATERMAN, JJ., who concur in part and dissent in part.
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in Part III of the majority opinion. However, I dissent from Part IV of the court‘s opinion and believe the search should be upheld for the reasons set forth in my dissenting opinion in State v. Baldon, 829 N.W.2d 785, 835-36 (Iowa 2013) (Mansfield, J., dissenting). Accordingly, unlike the majority, I do not need to reach the community caretaking exception, the exigent-circumstances exception, the special-needs exception, or reasonable suspicion. All of these are potential alternative grounds for upholding the search of Kern‘s home.
Having said that, I wholeheartedly endorse the majority‘s discussion of the first two of these issues. In the course of a few pages, the majority carefully applies the relevant Iowa and United States Supreme Court precedents. It concludes that this case involves neither community caretaking nor exigent circumstances as defined in the caselaw. I agree with the majority‘s treatment of these two matters.
Unfortunately, the majority‘s discussion of special needs is missing the same focus and faithfulness to precedent. Just a decade ago, we applied that doctrine in rejecting a challenge to a search of a school locker under both the
In a footnote, my colleagues downplay Jones because it “featured no independent analysis of the
While the majority relegates Jones to a footnote, it devotes considerable attention to State v. Cullison, a case we decided over forty years ago under the
Not only is the majority‘s survey of Iowa special-needs precedent historically inaccurate, its discussion is unnecessary and will introduce further uncertainty into Iowa search and seizure law. One can hold under existing
The majority‘s discussion of reasonable suspicion is also a puzzler for me. The State‘s position here is straightforward: Even if a warrantless, suspicionless search of a parolee is deemed impermissible under
In six pages of its appellate brief in this case, the State argues clearly and succinctly that based on logic and precedent, reasonable suspicion should be a sufficient ground for searching a parolee. It also argues that reasonable suspicion was present here. The State uses the phrase “reasonable suspicion” nine times in the course of these six pages. Kern then replies to the State‘s argument for four pages in her reply brief. She contends that reasonable suspicion to search the house did not exist.
Now, however, in a long footnote, my colleagues avoid the issue that the parties have presented to them. Instead, they recharacterize the State‘s reasonable-suspicion argument as just a “second layer” of its special-needs argument. This allows my colleagues not to address it. But it is a separate argument, and we said so in Ochoa. See 792 N.W.2d at 291 (identifying “(1) the potential application of special needs to searches of parolees conducted by parole officers” and “(2) whether individualized suspicion amounting to less than probable cause may be sufficient in some contexts to support a focused search” as two questions not answered by the court‘s opinion).
I would address the reasonable-suspicion issue by applying established
Reasonable suspicion was not present here. At the time of the search of Kern‘s home, the police had only the anonymous tip that marijuana was being grown and processed in the house, plus the occupants’ refusal to consent to a search. As noted by my colleagues, an anonymous tip without any indicia of reliability generally does not amount to reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254, 260-61 (2000) (holding that “the bare report of an unknown, unaccountable informant” did not amount to reasonable suspicion for a Terry stop); Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415-16, 110 L.Ed.2d 301, 308 (1990) (indicating that an anonymous tip standing alone would not normally provide reasonable suspicion for a Terry stop). And I also share my colleagues’ view that Kern‘s and Grant‘s refusals to consent to a search cannot provide a basis for a search. See State v. Maddox, 670 N.W.2d 168, 173 (Iowa 2003) (“[M]ere refusal to consent to a search does not establish probable cause.“); State v. Ripperger, 514 N.W.2d 740, 746 (Iowa Ct.App. 1994) (“The defendant‘s refusal to consent to a blood test cannot be used to support probable cause because such use denies the defendant‘s Fourth and Fifth Amendment rights.“).
In summary, I agree with the majority‘s determinations on sufficiency of the evidence. I would affirm the district court‘s denial of Kern‘s motion to suppress for reasons already stated in my Baldon dissent. Additionally, I agree with the majority‘s handling of the community caretaking and exigent-circumstance exceptions, but disagree with its handling of the special-needs and reasonable-suspicion matters.
WATERMAN, J., joins this concurrence in part and dissent in part.
Terry CHRISTIANSEN, Appellant,
v.
IOWA BOARD OF EDUCATIONAL EXAMINERS, Appellee.
No. 11-1448.
Supreme Court of Iowa.
May 24, 2013.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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
See id. (quoting O‘Connor v. Ortega, 480 U.S. 709, 741, 107 S.Ct. 1492, 1511, 94 L.Ed.2d 714, 738 (1987) (Blackmun, J., dissenting)). In Justice Blackmun‘s view, while probation presents special needs, it did not do so uniformly. See id. at 883-84, 107 S.Ct. at 3173-74, 97 L.Ed.2d at 723-24. An “ordinary home visit” to check in on the progress of the probationer‘s rehabilitation presents a special need justifying an alternative to the warrant requirement, but a full-scale search for evidence in a criminal investigation would not. See id. Furthermore, full-scale criminal searches may not promote a close relationship between the probation officer and the probationer and may in fact inhibit the development of the relationship. See id. at 886, 107 S.Ct. at 3175, 97 L.Ed.2d at 725-26. Of course, the warrant requirement does not frustrate the valid purposes of parole searches in all circumstances in which case the special-needs doctrine should be unavailable altogether. See cf. id. at 883-84, 107 S.Ct. at 3173-74, 97 L.Ed.2d at 723-24.“[O]nly when the practical realities of a particular situation suggest that a government official cannot obtain a warrant based upon probable cause without sacrificing the ultimate goals to which a search would contribute, does the Court turn to a ‘balancing’ test to formulate a standard of reasonableness for this context.”
The generalized balancing test employed in Knights appears to be very similar, if not identical, to the one employed in Griffin after determining a special need exists. Compare Knights, 534 U.S. at 119-21, 122 S.Ct. at 591-92, 151 L.Ed.2d at 505-07, with Griffin, 483 U.S. at 875-76, 107 S.Ct. at 3169, 97 L.Ed.2d at 718-19; see also T.L.O., 469 U.S. at 351, 105 S.Ct. at 747, 83 L.Ed.2d at 740 (Blackmun, J., concurring) (writing separately because the majority‘s opinion engaging in a balancing test “omits a crucial step in its analysis“). Knights itself appears to draw a close link between the application of the special-needs and generalized reasonableness doctrines, yet disclaims application of the special-needs doctrine. See 534 U.S. at 117, 122 S.Ct. at 591-92, 151 L.Ed.2d at 504-05. The Court held that the search condition of probation “significantly diminished Knights’ reasonable expectation of privacy.” Id. at 120, 122 S.Ct. at 592, 151 L.Ed.2d at 505. It considered the condition to be “the salient circumstance” in a “totality of the circumstances” analysis, id. at 118, 122 S.Ct. at 591, 151 L.Ed.2d at 505 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 354 (1996)), failing to consider either the issue of the voluntariness of Knights‘s acceptance of the parole condition or Knights‘s privacy interest in his home. In its discussion of balancing in this case, the State makes a similar argument regarding the mandatory search condition in Kern‘s parole agreement. Of course, in Baldon, we concluded a mandatory search condition of parole did not establish voluntary consent on the part of the parolee to conduct a search. See 829 N.W.2d at 802-03.
However, the State‘s assertion that the facts surrounding the two encounters in this case “gave the parole officer, Sergeant Garvey, the authority to search the premises” suggests the State was arguing special needs, not generalized reasonableness balancing. The State then argues Garvey properly delegated his authority to Officers Chance and Jenkins. We construe this argument as a second layer of the State‘s special-needs argument. In other words, the State asks us to hold that if a special need exists, parole officers should be able to conduct full-scale searches of parolees’ homes without a warrant supported by probable cause, so long as the parole officer has reasonable suspicion the parolee has broken the law or violated parole. Thus, the State‘s argument does not just ask us to apply the reasonable-suspicion standard to a search by law enforcement, but utilizes the proffered special needs of parole to make its case. Because the record in this case is inadequate for us to decide whether Iowa‘s maintenance of a parole system presents a special need, it is similarly insufficient for us to determine whether (assuming parole presents a special need under article I, section 8) a subsequent balancing of the relative interests of Kern and the State permit a full-scale search of Kern‘s home by police officers with only reasonable suspicion.