*1 ..., party Just as Knebel v. Ka-Boos “the law erated. itself must take care (Iowa Grill, & Bar N.W.2d requiring precautions [680 avoid excessive “the App.2004)], in the instant case own- relating actors to harms that are im- ers not know and had no reason to did mediately due to the improper conduct know the assault was about oc- parties, third even when that improp- summary judgment Accordingly, cur.” er can be regarded conduct as somewhat appropriate. is foreseeable.” circumstances, analogous Under other at 392 (quoting Restatement appellate courts affirmed directed (Third) 220-21). h, § g, of Torts 19 cmts. summary judgments verdicts when the The majority disregards that admonish- reasonably assault that occurred was not ment today. It is an precau- “excessive See, Martinez, e.g., foreseeable. Boone v. tion” require police to call Atkinson (Minn.1997) (affirm- 567 N.W.2d after ejected Hoyt Hoyt he or to guard ing directed verdict because “the evidence outside until he left unharmed when there established that the assault Martinez were two employees working at Gut- unforeseeable”); Rader was sudden and v. afternoon, terz given Knapp had Inc., Enters., Sugarland P.3d 707 no sign of trouble. (affirming (Wyo.2006) summary judgment reasons, For these I would affirm the parking fight when assailant lot summary judgment district court’s in favor passive bystander precipitating incident of Gutterz. inside before troublemakers were told to leave). Teshima, generally Joan An- CADY, C.J., J., MANSFIELD, join notation, Tavemkeeper’s Liability to Pa- this dissent. Assault, tron Third Person’s (collecting A.L.R.4th bar court fight adjudicated by cases as a law).
matter of
Summary is judgment appropriate also scope liability. this case on the “Un (Third) analysis,
der the Restatement ... something did or [defendant] did do Iowa, Appellee, STATE plaintiff. must have increased the risk” to Royal Factory Indent. Mut. Co. Ins. (Iowa Co., III, Appellant. Isaac Andrew BALDON 2010) (vacating plaintiff’s jury verdict on grounds scope the harm was outside the No. 10-0214. law). as a
liability Again, matter there Supreme Court Iowa. is no evidence that Gutterz failed to did or anything Knapp do that increased the risk April contrary, harm To Hoyt. would Gut
terz reduced the risk those men would by ejecting Hoyt,
come to blows who was
harassing Knapp. Brokaiv, we admonished that: premised liability
Where
negligent or intentional of a acts third
tent to possession deliver and of a firearm by a felon. granted He was October 2008. On November *3 officer, Baldón and parole his Kevin Peter- son, signed agreement a parole that con- tained seventeen standard conditions parole and special five terms parole. condition, One P, standard paragraph pro- vided that Baldón would submit “per- his son, property, residence, vehicle, place personal any time, effects to search at or warrant, without a search warrant arrest or by any reasonable cause parole officer or law enforcement officer.” The parole order directed that Baldón would Smith, Appellate Mark C. State Defend- not be parole released on until he signed er, appellant. for agreement. the Miller, General, Attorney Thomas J. To probationers combat recidivist and Parrott, Benjamin M. Assistant Attorney parolees, the Bettendorf Depart- Police General, Walton, Michael J. County Attor- ment commonly relied on paragraph P of ney, Kelly Cunningham, appel- and G. the standard of a parole agreement terms lee. to conduct parolees city. searches of Its officers were made aware of the con- CADY, Chief Justice. sent-search provision training and received case,
In this we must decide whether a in conducting parolee searches. parole in a provision agreement written More specifically, Bettendorf police offi- that authorizes a officer or parole law en- implemented cers protocol a to check the warrantless, forcement officer to conduct Traveler Motel in Bettendorf several times suspicionless parolee search of a and the day each part patrol. as routine The home, vehicle, belongings and of the parol- motel police was known department satisfies, itself, ee exception the consent perhaps highest the single crime loca- reasonableness and warrant re- tion in Bettendorf. The Bettendorf Police quirements the search and seizure Department has numerous made arrests clause of the Iowa Constitution. We con- motel, a total of 110 in 2007 alone. parole agreement satisfy clude does not Most probationers were arrestees exception, the consent we reverse and parolees. The frequently arrests most judgment and sentence district offenses, drug prostitution, involved gun court. We remand the case for a new offenses, and auto theft. trial. motel, protocol Under the search for the Background I. Facts Proceed- the patrolling officer checks the license ings. plate every numbers of vehicle in park- Baldón III ing probationers. Isaac was sentenced lot to or parolees locate term of to a incarceration with the If a belongs parolee, vehicle the lot to a penal system following pos- parolee’s convictions for the officer parole contacts officer, session controlled with in- substances either to obtain consent to search his parole officer After read Baldón Miranda Tripp to invite the parolee station, in a search of the officer con- join police rights police Baldón department parolee. police Both marijuana fessed he had received the using accustomed to officers are charged satisfaction of debt. parolees, as a basis to search paragraph P of a I possession Baldón with schedule suspicion based suspicion or either without deliver, controlled substance with intent to nature of area. high-crime on the offense, subsequent second or under Iowa front attend- desk officer then contacts 124.411 902.8 Code sections *4 to the motel ascertain whether ant of the an possession marijuana amount and, so, if into the motel checked parolee is grams than 42.5 greater violation to obtain room number. the chapter Iowa Code 453B. May a.m. on At 8:30 approximately suppress marijuana Baldón moved to the Tripp Dennis followed Officer from the search of his vehicle under seized during his of the Traveler protocol patrol both the Iowa and Federal Constitutions. check a 1996 plate Motel. license The entry He claimed the into his motel room registered it was Oldsmobile showed violated the Search Sei- and vehicle and this, Tripp Officer Upon learning Baldón. both zure Clauses of the Iowa and Federal commander, Sergeant Piaz- called the shift paragraph Constitutions because P of the za, parole and him contact officer asked parole involuntary agreement constituted Kevin Peterson. argued consent. The State the search was protocol, Sergeant the Piaz- Pursuant to reasonable because Baldón consented was at za informed Peterson that Baldón by signing parole agree- the searches the Peterson for the motel. He also asked serving It was ment. asserted Baldón still permission Tripp to have Officer search while on and parole his sentence whatever the motel room and vehicle. Peterson may he had expectation privacy Baldón, search but gave permission his the while on had been At parole waived. to be involved in he would like indicated motion, hearing suppression on the Officer meet the promptly the search and would he Tripp testified conducted the search police Tripp officers at the motel. learned agreement. the based He testified staying Baldón was in room no complaints involving there been had arrived, Tripp When Peterson Officer Peterson, parole Baldón at the motel. by Sergeant had Piazza and joined been officer, agreed “completely search another officer. The of- police Bettendorf agreement nothing based on and [the] 29 and collectively approached ficers room more.” Eventually, the door. Baldón knocked on woman, later opened young the door. A court denied mo- district Baldoris minor, sit- to be a was observed revealed It suppress. tion to found Baldón consent- ting greeted on the bed. Baldón Peterson by signing ed to the search explained that parole agreement agreement and that the consent made the a search authorized the officers to conduct It also Baldón search reasonable. found vehicle. motel room and Baldon’s privacy. any waived claim motel room and Bal- right trial Baldón then waived his to a person yielded incriminating evi- don’s no jury, guilty found him court dence. then took Baldon’s Tripp Officer charges. Following imposition keys car car. He and searched Baldon’s sentence, marijuana. Baldón large quantity appealed. discovered a Scope recidivism, II. of Review. preventing Standard as well as rea- suspicion. sonable
“We review claims district find general We the State waived the suppress court evidence failed obtained reasonableness argument by present- in violation of the federal and state consti ing it the district court in a manner that Dewitt, tutions de novo.” State v. would have fully allowed court to (Iowa 2012). pre N.W.2d When “ Ochoa, properly address it. State v. claim, sented with such a ‘we an make (Iowa 2010) 792 N.W.2d (recogniz- [based evaluation the to on] ing argument not made anon issue tality of the circumstances shown ” waived). First, before the district court is Kurth, entire record.’ State made argument special State no 2012) (Iowa (quoting governmental justified needs Krogmann, search.. “ Thus, we have opportunity no to consider 2011)). (Iowa ‘Each case must be evalu ” appeal in this whether the State’s mainte- light unique ated in of its circumstances.’ *5 of a parole nance system presents “special (quoting Krogmann, Id. N.W.2d beyond the normal for law needs[] need 523). enforcement, [which] make the warrant probable-cause requirement impracti- III. Issue Presented. T.L.O., Jersey cal.” See New 469 U.S. fighting dis- presented issue to the 325, 351, 105 S.Ct. 83 L.Ed.2d in response trict court to the to motion (1985) 720, (Blackmun, J., concurring); suppress was whether Baldón consented to Wisconsin, 868, see also 483 U.S. Griffin by signing parole the search the agree- 107 S.Ct. 97 L.Ed.2d Although ment. also seemed (holding opera- that Wisconsin’s argue generally more before the district probation system tion aof constitutes suspicionless court that parol- searches of special beyond need the normal need for ees did not violate the Search and Seizure enforcement). law either or Clause of the Iowa Federal Con- Second, the argument State made no parolees stitution because have a diminish- balancing the district court that a test expectation privacy, argued ed it never I, weigh under article section would suspicion the State had oth- reasonable sure, favor of the State in this For case. er grounds reasonable conduct suppression hearing the evidence at the search apart of Baldón from consent. parole was directed at Baldon’s status and sketchy, While the record is the diminish- putative consent as the basis for the was, ed-expectation-of-privacy argument Ochoa, search. See at 291 instead, tied to the State’s consent claim (holding parole status alone is insuffi- support proposition Baldón was justify parolee). cient to search of a aware expectation privacy he had little any State did not introduce evidence of after he signed parole agreement. particular the parole need for officer to Baldón, appeal, On its on predicated State reiterated search either indi- however, Alternatively, claim of suspicion, background consent. vidual information argued the State particular the search was reason to Baldón that would have been officer, general general able under a parole search-and-seizure known to the or the analysis Thus, expec parole. because Baldon’s minimal issue we only mission tation privacy outweighed by parole on is appeal address whether a society containing a managing parolees аgreement interests of consent-to-search to a claimant under our warrant- not be available suspicionless and clause renders As Justice reasonable under state constitution. William parolees less searches in his sagely clause of the Iowa Brennan declared call to and seizure arms for courts: state Constitution. mean-spirited not be a Federalism need analyze con- we
Additionally,
only to limit the
doctrine that serves
constitu-
sent
in this case
issue
Rather,
scope
liberty.
it must
human
The United States
grounds.
tional law
necessarily
significantly
furthered
be
yet directly
Supreme Court has
when state courts thrust themselves into
an out-
weighed in on the issue
direct
position
struggle
prominence
Fourth
or to
come under the
Amendment
protect
of our nation
people
from
under
aid
in our resolution
our state
us
governmental
intrusions on their free-
v. California,
Samson
constitution. See
doms.
3,n.
126 S.Ct.
n.
L.Ed.2d
259 n. 3
Jr.,
Brennan
State Constitu
William J.
a search
(declining to consider whether
tions and the Protection
Individual
agreement
provision
generated
in a
Rights,
Harv. L.Rev.
consent).
under
law constituted
that,
California
must remember
directly,
More
we
course,
beyond dispute that
times,
Of
it is
all
Iowa Constitution
“[t]he
our federal
state con-
drafters of both
governing
Iowa.”
cornerstone of
Var
right
to be free from
(Iowa
stitutions took
Brien,
num v.
*6
unreasonable, warrantless
seri- 2009).
searches
Ochoa,
ously.
generally
See
right
In
analysis,
the final
under
surrounding
at
(explaining
269-75
events
principles
to stand
the
of federalism
as
drafting
the
and ratification
the Federal
final
Iowa
word on the
Constitution is
Constitutions). Yet,
need not
Iowa
we
settled,
good
law. See
long-standing,
comb for textual differences between the
(re-
Ochoa,
281-86,
rantless, suspicionless pursuant searches by Supreme agreement voluntary to a is parole construing per- the federal constitution is “vol- magnitude the word suasive, binding upon but not this court in Thus, untary.” hinges our decision construing analogous provisions in our spirit justify of consent meaning and constitution.”); Tonn, State v. 195 state government’s regard intrusion without 94, 104-05, 530, Iowa 191 N.W. the constitution. exclusionary rule (rejecting Moreover, adopted is an exception by consent the United by evidence requirements of both the Iowa and Court seizures of Constitutions, it v. agents); Federal and would be in- see also Minnesota Nat’l Tea Co., 557, 676, 551, 679, judicial with our under the 60 S.Ct. 84 consistent role 309 U.S. (1940) (“It 920, circumstances to eschew our consti- L.Ed. is fundamental interpret tution that state be left free and unfet- issue under courts their by interpreting Federal unless relief would tered state con- Constitution us stitutions.”)- fully exception, As more elucidated requirement reasonableness concurring state constitutions opinion, the Search and Seizure Clause is satis- equality, been a crucial font of civil fied when an individual consents to a Katz, rights, incipi- and civil liberties from the 22, search. See U.S. 358 n. Thus, republic. ence of our S.Ct. at 515 n. L.Ed.2d 586 n. 22. jurisprudence regarding the free- Court’s The consent waiver rights establishes a from searches sei- dom unreasonable under the Search and Seizure Clause. Thus, under Fourth question zures Amendment —or before us narrows to fundamental, civil, any other or human whether the agreement this case right for that matter —makes for an admi- establishes consent. floor, certainly ceiling.1 but it is not a
rable
State,
The nature of
Traylor
supports
v.
596 So.2d
contracts
(Fla.1992).
general proposition
that consent to a
given
search can be prospectively
pursuant
mind,
background
pro-
With this
we
States,
Zap
a contract. See
now
as the
recognize
ceed
what we
624, 628-29,
66 S.Ct.
analysis.
Tonn-Ochoa
(1946),
judgment
L.Ed.
va
cated
U.S.
S.Ct.
IV. Discussion.
words,
L.Ed. 1259
In
per
other
It well-settled that
warrantless
son
contract awаy
can
the constitutional
“
virtually ‘per
searches are
se unreason
right
to be free from unconstitutional
subject only
...
to a few specifically
able
searches.
id.
excep
established and well-delineated
Bustamonte,
tions.’”
Zap,
engineer
Schneckloth
an aeronautical
en-
93 S.Ct.
Department
tered into
contract with the
L.Ed.2d
(quoting
Navy
perform experimental
Katz v. of the
work
*7
States,
347, 357,
United
389 U.S.
S.Ct.
test
involving
flights
airplanes.
88
Id. at
507, 514,
576,
(1967));
626,
1278,
19
ac
L.Ed.2d
585
S.Ct. at
66
conducted
free
right
at
his
to be
engineer.
gave up
the
Id.
charges against
fraud
627,
1279,
628,
suspicionless govern-
at
used to
general-
L.Ed.2d
is that the
the Search and Seizure Clause
107 S.Ct.
ly Griffin,
U.S.
“pretext
real and not a
for the
consent be
proba-
a search of a
(holding
L.Ed.2d
unjustified
against which
police
pursuant
pro-
home
to a Wisconsin
tioner’s
.intrusion
Amendment
directed.”
Fourth
regulation
permissible
bation
under
Schneckloth,
at
S.Ct.
addressing
special
theory,
needs
but not
Thus,
our con
36 L.Ed.2d
probationer
whether the
had consented
with a
presented
cern when
search-and-
regulation).
under
We too
seizure claim
context
contractual
question
previously
have not
decided
*8
promised
Ochoa,
consent
that the consent
under
is
under
Iowa Constitution. See
227,
voluntary.
be
id. at
contract
at 291.
792 N.W.2d
Cf.
2047-48,
793
(1979)
parolee,
probationer,
(holding
gave
unlike a
consents to
defendant
“a valid and
Fourth
the waiver of his
Amendment
knowing consent to a search of his dwell
rights
opportunity
exchange for
ing and
he agreed
automobile when
[to the
term.”);
prison
avoid service
aof
Mitchell,
terms of probation]”); State v.
22
Mason,
759,
People v.
5 Cal.3d
97 Cal.
663,
(1974)
263,
N.C.App.
207 S.E.2d
264
(1971) (hold
302,
630,
Rptr.
488 P.2d
634
(holding person
consent
may
to warrant-
ing probationer may
priva
waive claims to
less searches as a
of a suspended
condition
cy by
in advance to
agreeing
permit
sentence);
Davis,
118,
State v.
191 S.W.3d
time);
State,
any
searches at
Allen v.
258
(“A
122 (Tenn.Crim.App.2006)
probationer
909,
(1988)
424,
Ga.
369
910
(finding
S.E.2d
consents to the waiver of his Fourth
provision
part
proba
consent-search
as
rights
Amendment
in exchange for the
voluntarily
during
tion was
obtained
plea
incarceration.”);
opportunity to avoid
Gawron,
negotiations);
112
State v.
Idaho
Martinez,
(Utah
205,
v.
811 P.2d
209
Ct.
(1987)
841,
1295,
736 P.2d
1297
(holding
App.1991) (holding probationer prospec
society
conditional
of proba
release into
tively
by signing
consents to searches
pro
tioner
expectation
privacy);
decreases
agreement);
bation
Anderson v.
344,
Common
Devore,
153,
State v.
2
134 Idaho
P.3d
(2000)
wealth,
probationer’s
580,
339,
256
(discussing
abili
Va.
507 S.E.2d
warrantless,
ty
prospectively
(1998)
consent
(holding
agreement
defendant’s
suspicionless
probation
searches
consent-search provision not coerced mere
Absher,
agreement);
People v.
Ill.2d ly because it
“one of two
was
undesirable
77,
351 Ill.Dec.
N.E.2d
664- options”).
(2011)
(holding
contractually
defendant
Some
probation
courts have concluded
agreed to
to avoid
probation
pris
intensive
voluntarily
ers do
on);
State,
consent
to these
Rivera v.
667 N.E.2d
(Ind.Ct.App.1996)
(holding
provisions,
search
defendant
however. See United
agreed to submit to searches as a condition
Consuelo-Gonzalez,
States v.
521 F.2d
Hellenthal,
probation);
People
(9th Cir.1975)
265 &
(rejecting
n. 15
Mich.App.
465 N.W.2d
argument
theory”
“contract
(“A probationer ...
given
has
his consent
probationers
be
applied
could
so
in return for more lenient
treatment.”
“[sjubmission
any
to make
[to
search]
Peterson,
(quoting People
Mich.App.
State,
the price
probation”);
Grubbs v.
(Danhof,
233 N.W.2d
(Fla.1979)
373 So.2d
(holding
con
J.,
concurring
part, dissenting
part)));
probation requiring probationer
dition of
Anderson,
State v.
any
“to consent at
to a
time
warrantless
(Minn.2007) (holding acceptance
proba
a law
officer”
enforcement
“
subject
tion
condition ‘signifi
to search
unconstitutional);
v. LaF
Commonwealth
cantly diminished
reasonable
[Anderson’s]
*9
rance,
789,
379,
402 Mass.
525 N.E.2d
381
”
expectation
privacy’
(quoting Knights,
of
(1988) (“The
n. 3
quality
coercive
119-20,
591,
for the
(1972)
296,
763,
conditioned on
(holding
“when the waiver
496 P.2d
765-66
[was]
a
right,
so hallowed
voluntarily
the surrender
to consent-
parolee
agreed
to no choice at
choice amounted]
so-called
as a
of release
provision
search
condition
signed accep
probationer’s
all [and]
People
Huntley,
society);
into
v.
43
effect
legal
coerced
tance therefore was
31,
175, 401 N.Y.S.2d
371 N.E.2d
N.Y.2d
(footnote
nugatory”
thus rendered
(1977)
794,
parolee’s sig
(holding
798
Schlosser,
omitted));
202
State v.
not to
parole agreement
nature
“is
be
(N.D.1972)
136,
(holding search provi
139
any
taken as
unrestricted consent
probation
“constitute^]
sion
order
and all
whatsoever or as a blan
searches
necessary
element of [the
reasonable
rights
ket waiver of all constitutional
be
regulation
probationers,]
which
court’s
secure from unreasonable searches and
consent”);
require the defendant’s
did not
seizures”);
Bunting,
v.
133 Ohio
Sullivan
State,
686,
(Tex.
Tamez v.
534 S.W.2d
692
(2012)
31,
999,
St.3d
N.E.2d
1001
975
probationer’s ac
Crim.App.1976) (holding
parolee consented to search
his
(holding
provision
parole
of search
ceptance
agreement);
e-mail
on the parole
based
did
agreement
“freely
not constitute
Benton,
316,
82 Ohio
State v.
St.3d
695
consent).
voluntarily given”
(1998)
757,
(holding parolee
762
N.E.2d
hand,
the other
handful of
On
search-and-seizure
waives
question
have
the same
courts
addressed
rights
voluntarily
agree
by
signing parole
parole agreements
in the context
ment);
Parole,
&
v. Pa. Bd.
Scott
of Prob.
case,
in this
mixed
we face
results.
(1997) (hold
418,
32,
698 A.2d
Pa.
United States ex rel. Coleman v.
ing parolee’s right to
from
be free
unrea
(W.D.N.Y.
Smith,
1155,
F.Supp.
sonable searches
seizures
“unaf
1975) (holding
provision in
consent-search
signing
fected
his
the consent to
parole agreement was coerced
invol
provision”),
grounds,
rev’d on other
State,
1235,
untary); Roman v.
570 P.2d
2014,
2022,
118 S.Ct.
(Alaska 1977) (holding
released
(1998);
v.
141 L.Ed.2d
State
Tur
do not voluntarily
offenders
consent to all
(Tenn.2009)
ner,
297 S.W.3d
parole); People Reyes,
conditions of
v.
parolee
(adopting Samson “where the
has
743, 80 Cal.Rptr.2d
Cal.4th
968 P.2d
by law
agreed to warrantless searches
en
suspicionless
(holding
officers”);
Velasquez,
forcement
v.
State
parolees
justified by
be
searches
cannot
(Utah 1983)
1260 & n. 4
P.2d
prospective
if
parolee
consent
does not
waive Fourth
(holding defendant does not
reject
freedom to
accept
parole);
protection by signing parole
Amendment
People McCullough,
v.
6 P.3d
agreement, but the search condition does
(Colo.2000) (avoiding
consent issue
re
right
parole
confirm
officer
conduct
lying
special
jus
on the
needs doctrine to
scope
parole
reasonable searches within
search);
Wilson,
v.
tify
parolee
People
mission);
State,
P.2d
Pena
35, 319
228 Ill.2d
Ill.Dec.
N.E.2d
(“[A]
signa
(Wyo.1990)
parolee’s
(adopting
in
Samson
agreement
permits
ture
which
parole
on a
parole agreement’s
stead of
analyzing
acknowledge
warrantless searches as an
search condition under
consent frame
right
ment
officers have the
work);
Heaton,
*10
searches.”); see
conduct reasonable
also
(Minn.Ct.App.2012) (“By agreeing
to
Williams,
468, 472
State v.
486 S.W.2d
parole, appellant
search] condition of
[the
(Mo.1972) (“[Parolees]
accepted
his
expectation
diminished
reasonable
the
degree
parole subject
1042;
favor of
to that
Ill.Dec.
885 N.E.2d at
see also
Samson,
required
surveillance and search
under
purportedly
rights by accept-
waives his
community
academic
recog-
has also
ing
genuine
such
condition has little
nized
in
weaknesses
treating consent
”
option
refuse.’
voluntary
searches as
searches in the con-
LaFave,
Wayne
Id.
(quoting
R.
Search
text
grant
parole.
David T.
Cf.
and Seizure: A
Treatise on
Fourth Reindl, Bargains
or Unconstitutional
(4th
10.10(b),
§
at 440-41
Amendment
ed. Contracts? How
Proba-
Enforcement of
2004)).
tion Orders as Contracts Could Take the
Reasonableness
Out
Probation
Kennedy
Similarly,
recognized
Justice
Searches,
Eng.
33 New
J. on
& Civ.
Crim.
using
predicated
weakness
consent
(2007).
Confinement
A pre-
acceptance
consequences
of adverse
dominant
in
factor
this observation is the
in
concurring opinion
Ferguson
his
in
government’s
Charleston,
67, 90-91,
overwhelming bargaining
City
power
negotiations
during
tends
render
S.Ct.
149 L.Ed.2d
these
contracts essentially contracts of
J.,
(Kennedy,
concurring). While
adhesion,
particularly objection-
with some
disagreed
majority’s
he
analysis
able clauses and conditions of these con-
regarding
purported special
jus-
needs
tracts being both
procedurally
sub-
practice by
tification of a
public hospital
stantively unconscionable.
Id. at 149-51.
require pregnant
mothers who dis-
Moreover,
legal
while
title of a
docu-
played
symptoms
certain
and characteris-
dispositive,
ment is not
a contractual theo-
testing,
tics to consent
to drug
Justice
ry may
especially inapplicable
be
Kennedy
spoke
also
concurring opin-
his
when,
case,
as in
they
conditions
are
ion to the nature of the
consent dictated
part of a document that is itself entitled
hospital.
id. He wrote:
“Order.”
caption
See id.
146. That
or
essential,
An
distinguishing feature of
captures
title properly
the real character
special
needs cases
that the per-
Indeed,
has
transaction.
it
been
consented,
son
has
though
searched
that,
power
noted
can
while
imbalance
be a
usual
analysis
voluntariness
is altered
key
validity
factor in
of a
determining the
because adverse consequences (e.g., dis-
contract, it
an
important
has been
factor
employment
disqualifica-
missal from
the consent-to-search context since before
tion
playing
high
sports
from
on a
school
Lassiter,
Schneckloth. Christo
Consent to
team) will follow
per-
from refusal. The
Search
Ignorant People, 39 Tex. Tech
consent,
given
son searched has
as de-
1171, 1189-91
L. Rev.
fined to take into account that the con-
voluntary
sent was not
in the full sense
Professor LaFave has written extensive-
consent,
of the word. The
and the cir-
ly in this area and has
that a
concluded
given,
cumstances which it was
bear
coercive atmosphere necessarily militates
upon the
reasonableness
the whole
against
finding that
ostensive consent is
special
program.
needs
LaFave,
voluntary. Wayne
R.
Search
(citations omitted). Thus,
Id.
both
Seizure: A Treatise on the Fourth
(5th
prior precedent
8.2(b),
authority
§
and a line of
Amendment
ed.
2012)
outside Iowa has
revealed that
consent-
The coercive
[hereinafter LaFave].
to-search clause in a
parole agreement
atmosphere of
detention
an of-
physical
satisfy
necessarily
type
signifi-
would not
ficial
of the “greatest
location is
*13
cannot,
course, substi-
acquiescence
con
at
Professor LaFave
Id.
88.
canee.”
“
tute
free consent.”
for
has
been
‘custody alone
never
that
cedes
in itself to demonstrate
enough
[coer
Berry, 670
(quoting
Id.
States v.
United
”
Cir.1982)).
(quoting
(5th
Id. at 84-85
583,
cion].’
F.2d
We
596
424,
820,
Watson,
423
96 S.Ct.
for coer-
recognized
U.S.
similarly
potential
(1976)).
None
stops.
46 L.Ed.2d
cion
in brief roadside
even
Pals,
767, 782-83
theless,
emphasizes
LaFave
distinction
(Iowa 2011) (holding
request for
subject
officer’s
cases in which
between
informing
car
squad
consent in the
without
leave
was either “free to
or was
warning him
Pals
free to leave or
he was
at
the time” and
surroundings
familiar
was
right
his
to refuse consent
regarding
subject
in which the search
was
cases
coercive).
words,
can
In other
coercion
(footnotes omitted).
Id. at
custody.
way into
interaction
easily find its
human
Indeed,
this
suggests
LaFave
distinction
when
is involved.
detention
to
pivotal
was
the outcome
Schneekloth
itself,
development
stating,
Supreme Court
LaFave has also traced the
[in
“[T]he
that,
probation
‘since
consent-to-search clauses
noted
consent
]
Schneekloth
parole agreements
the now discred
a
to
normally
person’s
will
occur on
searches
theory
parole.
grace”
ited “act of
territory,
specter
of in
own familiar
10.10(b),
527;
§
at
also Culli
LaFave
see
interrogation
police
in some
communicado
son,
(rejecting
at 536-37
simply inappo-
remote station house is
”
theory of
LaFave
grace”
parole).3
“act of
Schneckloth,
at 89
(quoting
site.’
Id.
grace”
*14
while a government
argue
could
it could
requires
tion of Schneckloth
more than a
decline
public
to offer
housing altogether
superficial inquiry into the
of a
existence
and thus should be
to require
able
waiver
agreement
a
containing
consent
of constitutional
protec-
search-and-seizure
provision.
Id. at 532. LaFave concludes
tion as consideration for offering
pub-
by drawing a connection between Schneck-
lic
housing in
first place,
argument
this
loth’s reliance on Fifth Amendment cases
“bluff,”
would be a
given society’s accep-
analyze
that
the voluntariness of a confes-
public
Stuntz,
tance of
housing.
44 Stan.
sion and
L. Rev. at
It
necessarily
568.
would not
long
rule
established
that
confes-
be a
society
bluff if
did not value available
voluntary
is not
given
sion
when
in re-
options for affordable public housing.
Id.
to an
sponse
assurance
maker
application
of these principles to
“that, by
doing,
so
he
at
might
least
parolees
searches of
is somewhat difficult.
mitigation
obtain a
punishment
hand,
On
granting
the one
parole decreas-
for the crime which
would
otherwise
as-
es
financial
government’s
burden
suredly follow.”
operating
system.
a prison
See id.
at
States,
Id.
(quoting Bram
United
Articulating
stricter
standards
for
183, 195, 42
U.S.
18 S.Ct.
L.Ed.
parolees,
hand,
searches of
on the other
(1897)).
568, 581
He doubts whether such
wmdd likely limit the number of prisoners
“quid pro quo
...
pass
could
muster
granted
treatment,
lighter
such
”
and opines
may
under Schneckloth
costs of supervising probationers
pa-
very
be the
reason the United States Su-
Thus,
rolees
also
would
rise.
Id. at 581.
preme
consistently analyzed
Court has
this consequence
ultimately
would
of parolees
probationers
searches
redistributing
effect of
the loss of free-
other grounds.
Id.
dom
parolees subject
from
to enhanced
argued
Other commentators have
supervision techniques to increased num-
thinking
contractual
nonetheless has a
bers of prisoners
grant
whose
of condition-
place in constitutional search-and-seizure
al
delayed
freedom is either
or never
analysis, particularly
govern-
when the
granted.
Id.
obligated
ment is not
extend
certain
or
privilege
place.
benefit
the first
Wil-
argued
Another commentator has
Stuntz,
liam J.
Implicit Bargains,
government
Govern-
could not
fact choose
Power,
Amendment,
ment
and the Fourth
not
grant parole
for
least
pris-
some
(1992)
L.
Stan.
Rev.
oners given
prisons,
govern-
[hereinaf-
like other
Stuntz];
Chmelar,
ter
see also Michael
ment departments,
budgetary
face
restric-
McNamara,
Impact
Note,
Contract Law and Its Potential
on tions. Antoine
Searches,
Prison,
“Special
Probation,
Parole
Probation
28 N. Ill.
Needs"
(2007);
Parole,
U. L. Rev.
Kathleen
82 N.Y.U. L. Rev.
cf.
Sullivan,
Conditions,
M.
Unconstitutional
[hereinafter McNamara]. McNamara
102 Harv. L. Rev.
notes that a recent
study found that
(“What government
give
benefits
rise to
or
offering parole
probation would “more
Id,,
problems?
unconstitutional
conditions
than triple
population.”
the inmate
searches,
frequency
rate
(citing
E. Glaze & home
low
n.
Lauren
237 & 191
Justice,
Palla,
Bureau of
Dep’t
probation
searches combined
Seri
home
Statistics,
Parole in the
Probation and
of home searches indicates
officer dislike
(2005)). Therefore, con-
searches are not
that warrantless home
assertion in Bar-
trary
Judge
Posner’s
necessary for the maintenance of Wiscon-
“[give]
probationers
parolees
nett that
Indeed,
system).
sin’s
Schneid-
probation
submit to war-
by agreeing to
up nothing”
acknowledges that Justice
erman
Scalia’s
searches,
rantless,
see 415
suspicionless
bemay
searches
analogy to administrative
parolee
probationer
F.3d at
visits,
home
but is
apt in the context of
gets nothing
waiving
in return
actually
of “full-blown
inapposite
the context
search-and-seizure
their
*15
searches,”
generally
which are
conducted
McNamara,
L.
at
82 N.Y.U.
Rev.
rights,
that a
parole
when the
officer believes
238.
may
taking
parole
or crime
be
violation
provides empirical data
Another article
place. Id.
656-57.
of Schneckloth n
other
relevant to the
side
mind,
proceed
With all this in
we
equation.
In the context
policy balancing
prospec
to
the
of a
consider
voluntariness
rights by
Fourth Amendment
of waivers of
provision
parole
tive
in a
consent-to-search
surveyed forty-
one article
probationers,
a
of a
agreement
justify
used to
search
probation officers after the
one Wisconsin
is not
parolee.
Importantly,
issue
opinion
Supreme Court’s
Griffin
government
can
cannot
whether
or
a blanket waiver of search-and-
found that
parolee.
search
a
The narrow
conduct a
of
to
protections
“applies
pro-
all
seizure
whether
question
govern
before us is
to
necessary
adequately
not
bationers is
solely
can conduct the search based
ment
P.
public.” See Howard
protect
required
given by parol
on
to be
consent
Schneiderman, Comment, Conflicting Per-
ees
release from prison.4
as a condition of
the Bench and
Field on
spectives from
Every
govern
search
a citizen
v.
Home Searches—Griffin
Probationer
recog
supported
ment must be
some
Reconsidered,
Wis.
L. Rev.
Wisconsin
that,
justification,
we must
ground
nized
(arguing
although
only
pris-
if
from
appreciate warrantless
decide
consent extracted
probation officers
question
government
whether the
Our
resolution of this case dоes not
the narrow
4.
ultimate
agreement
a
parole
may
compliance with
condition
render the conditions of a
enforce
through
may ordinarily
probation
principle of
The State
im-
the contractual
unenforceable.
any
grant
does
pose
on the
The reasonableness standard
reasonable condition
consent.
Valin,
parole.
supersede
not
the voluntariness standard
Cf.
445-46,
(Iowa 2006)
determining
validity
(recognizing the
of searches conduct
did,
purported
ed
If it
we think
may impose
conditions of
to a
consent.
reasonable
holding
probation,
probation
very
a
little would remain of the voluntariness
but
condi-
who
This is
requiring
tion
a sex offender
was con-
standard articulated
Schneckloth.
imposes
precisely
reason
operating
victed
while intoxicated to be
because the state
conditions;
subjected
penile plethysmograph
prospective parolee does
a
exam
able
unreasonable).
agree
Code r.
arousal was
A vio-
not
to them. See Iowa Admin.
for sexual
("The
201-45.1(2)(n)
parolee may
in a
be re
condition can result
lation
revoca-
Thus,
parole
parole
prison.
prior
to the execution of
tion of
return to
leased on
parole agreement
parolees
parole agreement. does not mean
are not
decision
parole pursu
required
conditions of
shall contain
conditions
to follow reasonable
45.2(906)....”
parole, including
provi-
(Emphasis
rule
add
search
ant to
reasonable
sion,
ed.));
(listing
parole
they
id. r. 201-45.2
ten standard
or that
could not have
re-
parole
parolee
failing
with a
with which the
comply
voked for
term in the
conditions
comply).
parole agreement. This case
deals with
"shall”
parole
a condition of
gain
oners as
release
with no
rights
freedom
ground.
one such
have no
constitutes
We
involving search and seizure
simply
is
“no
Tamez,
in this case to consider other
occasion
choice at all.”
S.W.2d at
available
grounds
justify
to the State
stake,
When a constitutional right
is at
search.
such a
more than a one-sided agreement
need-
is
ed to establish waiver of
right.
Zap,
Unlike the situation in
obligation
courts to
examine
voluntary nature of
the consent
agreement
voluntariness
nothing
supported by
was not
the benefit of the
supported by
new and is
our law of con-
bargain
found on the face of the
instance,
tracts. For
we refuse to enforce
agreement
appreciate
this case. We
unconscionable contracts.
Casey
can,
bargain
that the
under a contract
(Iowa
1979)
Lupkes,
times, involve a choice
two unpa
between
(recognizing unconscionability as
gener-
alternatives,
latable
which
not defeat
does
ally
defense);
contract
available
also
see
the voluntariness of the
See Bar
consent.
(Second)
§
Restatement
Contracts
nett,
(declaring
415 F.Sd at 692
that a
(permitting
court
refuse
accepting probation
choice between
as a
*16
part
enforce all or
of a contract
if the
plea bargain
term of a
is more valuable
contract was
unconscionable when
going
prison following
than the risk of
to
formed). The doctrine is especially appli-
Benton,
trial);
(reject
ure agree parole the terms of a condition with other occasions when we tent Iowa Admin. Code r. 201- of release. of a contract that to enforce terms refused 45.1(2) (“The may not parolee be released were, reality, not consensual. all parole prior on to the execution of reality practical regarding A release Thus, the parole agreement.”). refusal prisoners parole bolsters conclu- and suspicionless consent to a warrantless prisoner in the Iowa Generally, sion. simply many, many means more automatically earns one penal system years does prison, giving while consent day for each day good-time credit release earlier than parolee offer to a 903A.2(l)(a). § served. See Iowa Code fundamentally, otherwise entitled. More parole the time when can be Accordingly, parolee conceptually are consent searches in half good- an inmate is cut offered to concept bargaining detached from the in most Additionally, parole time credits. able impose the State would be because For much exam- cases is offered earlier. any parole irrespective reasonable term of report to a annual ple, according recent parolee. consent of the average parole, from time the board un- practical standpoint, From a consent obtaining prison prior served in der circumstances is not real. We these possession of marijuana on conviction for liberty are bound to in arti- duty give eighteen intent to distribute was I, cle section of our constitution months, years. not ten Iowa Board of demands, it and we integrity deserves and Parole, Report Annual for State Fiscal allow the avoid an government must not (2012), at The average Year 2011 18 tbl. 6. *17 important power check on its constitutional parole to of prior grant time served for play an unfair on human nature. using a stamp failure to affix tax was 18.6 I, give To we integrity, article section 8 its time average months. Id. served pa- acceptance must hold Baldon’s possession of a firearm a felon was role agreement did not constitute consent months, Thus, years. five Id. 16.2 precedent. under our average parolee who prospective commit- ted the crimes as Baldón would face same Moreover, there no evi- additional in eight years prison more than additional dence in the record to reveal Baldón volun- parole agree- if he or did not sign she search, tarily consented to a even in the containing ment a provision. search Un- bargaining power. The conclu- absence circumstances, der it is these unreasonable sory read evidence this case Baldón reality to of consent nоr- believe that parole and understood the terms mally exchanged from derived the benefits agreement does not establish his consent. between contract parties applies to a Nevertheless, pa- the State relied on parole agreements. The amount of consent, role agreement alone to establish points freedom typically stake inadequate. which conclude we is coercive nature of as a consent searches Considering obligation to ensure precondition to release. that consent remains a doctrine of volun- prisoner
Additionally, essentially integrity, a has tariness that functions with we nothing bargain parole containing a a parole agreement when it comes conclude system parole because the does search is insufficient prospective provision not offer early parole agree a con- to inmates who to be evidence to establish consent. Such Instead, paroled. bargaining if are an searched inmates tract reveals absence power parolee, rendering entitled behalf of the parole under a different calcula- principles inadequate to entitle I. contract Historic Role of State Constitu- a tions. compliance the state to enforce search extract- provision. purported consent Constitutions, A. State Declarations prisoner a as a ed from condition of re- Rights, and Judicial Review Prior to voluntary lease fails to constitute consent. Ratification United States Constitu- mandatory parole, As a term of such con- tion. Suppose leading a historian asks justify- sent also would effect you identify period in American histo- ing the on the basis of sta- search ry. you The historian the period tells permitted tus. This is not under Ochoa. question was “the signif- most creative and needed, More is and consent provision period icant of constitutionalism in modern parole agreement supply does not history.” Western The historian further justification additional because it fails to you many advises able and dedicated pass the test of voluntariness un- required persons away were drawn from their other I, der 8 of the article section Iowa Consti- important political responsibilities to en- tution. gage in legal drafting. Finally, the histori- you advises that the end work product “captured those who labored the atten-
V. Conclusion. tion of everywhere intellectuals above, For the reasons stated we hold world” was “published repub- provision that the in Bal- contained lished in European several languages.” agreement don’s parole represent does not clues, With you might these three be voluntary grant consent within our tempted period to answer that the being such, meaning. As the sus- is the described several months picionless search of Baldon’s car violated when delegates to the Constitutional I, article section 8 of the Constitu- Iowa in Philadelphia Convention drafted the Accordingly, tion. the district de- court’s United State Constitution. But you would nial of Baldon’s motion to is re- suppress be wrong. versed, and the case remanded to the *18 The description above on the based proceedings. district court for further Wood, writing of histori- leading Gordon AND REVERSED REMANDED FOR an of Era Revolutionary Early the and the TRIAL. NEW Republic. writing pa- He was with such
nache about not the Con- Constitutional WIGGINS, HECHT, APPEL, peri- vention in but Philadelphia, and about the ZAGER, JJ., APPEL, join J., od in when opinion; beginning began states concurring opinion; process drafting indepen- files a the of their own separate MANSFIELD, J., dissenting dent files state constitutions. Gordon S. J., Wood, opinion WATERMAN, joins. in which Foreword: State Constitution-Mak- Revolution, ing in American 24 Rut- the APPEL, Justice (specially concurring). gers L.J. 913-14 [hereinaf- ter Wood]. join I majority opinion, but write to review the of Philadelphia foundations the well-estab- While the convention and law we jealously greater notoriety lished Iowa reserve its aftermath have to- right day, independent to construe our state constitution the construction of independently important legal of decisions of the United constitutions was an devеl- paral- interpreting opment. More than a decade before the provisions Philadelphia, lel Federal in Constitution. Constitutional Convention states should independence 1776 en- whether the Congress May
the Continental constitution, gov- pre- of state to be adopt the establishment a uniform couraged powers govern- Congress. the of with “all the Continental pared ernments authority of the exerted, Green, under M. ment Fletcher Constitutional Devel- Rakove, States, See Jack of the colonies.” 1776- people opment the South Atlantic An National Politics: Beginnings The Study A in the Evolution Democ- 1860: of of History 1966) the Continental Interpretative (W.W. 52-54 Norton & Co. racy of Jensen, (1979); Merrill Congress 96-97 Ultimately, following [hereinafter Green]. An Inter- Articles The Adams, John the Continen- proposal of of Confederation: the Social-Constitutional pretation Congress recommended that the states of tal “ the American Revolution History 1771- ‘in their own constitutions that of form (1948); also see TV Journals of people, opinion representatives of 177 n -1789 Congress, the Continental happiness and safety conduce to best 1904-87) ah, et (Worthington Ford ed. C. in particular, their constituents ” Journals Continental [hereinafter Id. (quoting America in at 54 IV general.’ later, Decla- A few weeks Congress]. Congress Journals Continental Independence ration of declared Adams, 342); see Willi Paul The First also are, Right and of “these United Colonies Republican American Ide- Constitutions: Independent Free ought to be Making ology State Constitu- Indepen- Declaration of States.” The Revolutionary Era tions 55-56 1776). (U.S. By the time para. 32 dence (Rita trans., Kimber Madison & Robert Declaration, already the states had 2001) (de- Books, expanded, House ed. structures, includ- develop their begun scribing reasoning in recommend- Adams’s Edmund S. Mor- ing their constitutions. its own ing Hampshire to New that it form Republic, 1763-89 gan, The Birth of Thus, the colonialists ex- government). (3d 1992) Morgan]; ed. [hereinafter rejected uniformity. Green at 54. pressly Wood, John Rutgers L.J. at 913. Madison, Adams, Mason, approval of the Articles Confed- George James Morris, among did alter the of state Jay, Gouverneur eration status John others, drafting participated sources constitutions as these state I Melvin Urof- constitutions. of what the Decla- law. constitutions Finkelman, Paul A Liber- sky & March “Indepen- Independence ration of called A ty: History Constitutional Unit- States” with the Articles of dent coexisted (2d 2011). ed. ed States Under the Articles of Confederation. *19 states, Confederation, people, not the Thus, upon declaring independence, represented Congress. were John to a state people did not return Hobbesian Kaminski, P. The Constitution Without Rather, gov- prior of nature. colonial Rights, Rights Bill in The Bill and into “Independent ernments evolved of of Revolution- the States: The Colonial and process. through States” ary Origins American Liberties 1776, ten By governments the end of state of (Patrick Conley T. & John P. Kaminski place, being complet- were in with the rest 1992) Kaminski], eds., Wood, Article 90; [hereinafter in at Morgan ed II of the Articles of Confederation struc- Rutgers get-go, L.J. 913-14. From the relationship between the states to tured designed these state constitutions were States, Congress and the “United in as- of As noted be stand alone sources law. Green, Articles of de- sembled.” See Confederation by Fletcher M. colonialists provided, II. It “Each state extensively preceding bated in the months of art. freedom, sovereignty, inde- retains its and State Litigating Constitutional Law: In- every pendence, power, jurisdiction Claims, and Rights, Defenses, dividual by (4th which is not right, 1.03[1], 2006) § this confedera- at 1-7 to 1-10 ed. delegated tion expressly to the United of Eight [hereinafter these Friesen]. ear- States, in Congress assembled.” Id. ly state constitutions (Virginia, Pennsylva- nia, Delaware, Maryland, Carolina, North
By the time Constitutional Con- Vermont, Massachusetts, and Hamp- New Philadelphia, vention in eleven states had shire) had search and provisions. seizure (Connecticut written constitutions Schwartz, Bernard The Rights Great governance Rhode Island continued under A History Mankind: the American Bill charters). modified Ketch- Ralph colonial (Madison 1992) Rights 88 House [here- am, Introduction, in The Anti-Federalist inafter particular Schwartz]. Of interest is Papers and the Constitutional Convention the Massachusetts search 1986) pro- and seizure ed., (Ralph Debates Ketcham important vision. This search and seizure Ketcham]; Advisory [hereinafter Commis- provision Adams, was by drafted John Relations, who Intergovernmental sion on State young lawyer as a was thrilled to hear System Constitutions in Federal rail in James Otis Paxton’s case against in [hereinafter Constitutions the new writs of by assistance issued the Federal System]; generally see also See, Sturm, English crown. e.g., Leonard Albert L. The W. Development of Constitutions, Levy, Origins Rights Bill American State 12 Publius Levy]; John M. [hereinafter This state constitutional Mur- rin, experience recognized Rights: Jef- From Liberties to by Strug- was Thomas Massachusetts, ferson, gle in Colonial who is said have calculated that The Bill Rights 1787 the states and the collectively shared States: Colonial years govern- experience republican Revolutionary Origins American result, 63, 88-91, (Patrick ment. at 3. Ketcham As a when T. Conley Liberties 1992) eds., the conclave opened Philadelphia, there & John Kaminski P. [hereinaf- Murrin], already mature state constitutional ter Adams’s experience influ- which upon tradition the founders could enced the text of the provision. Levy at Lutz, draw. S. 158; Donald The Origins Murrin 91. It states: (1988).5 American Constitutionalism 5 subject Every right has a to be secure Thus, the Constitution was searches, from all unreasonable and sei- not created some legal Big kind of houses, zures, person, pa- of his his his Bang, but instead was the outgrowth all pers, possessions. his All war- colonial experience and state constitutional rants, therefore, contrary are to this precedents. right, if cause or foundation of them Many early of these previously supported by be not oath or affirmation; rights constitutions had declarations of and if the order the war- Friesen, provisions. officer, similar See 1 Jennifer a civil rant to to make search in *20 2001); regarding 5. There is substantial literature the The Constitutionalism American of prior (George formation of Christopher state constitutions the E. States Connor & W. eds., 2008); Kruman, adoption of the United States Constitution. W. Hammons Marc Be- See, Adams, e.g., Authority Willi Liberty: Paul The First American and State tween Constitu- (1997); Republican Ideology Making Constitutions: and Revolutionary the tion America Wood, Making State Constitutions in the Revolu- see Gordon S. Foreword: also of (Rita tionary Era Constitution-Making & Robert Kimber in the American Revolu- trans., Books, tion, (1993). expanded, Rutgers Madison House ed. LJ. 911 (2005). n. 83 In the L. Rev. 475-76 & or to arrest one or suspected places, Trevett v. Rhode Island case unreported or to seize their persons, suspected more Weeden, Court a the Rhode Island accompanied with be not property, a in 1786 that passed struck down law persons the or special designation of search, arrest, imposed penalty, requiring without and objects seizure: of trial, accept the jury who did not issued but in those ought be no warrant money place gold cases, pre- paper state’s with the formalities In v. Sin Bayard silver. Id. at 476-78. laws. by scribed (Mart.) (1787), North gleton, 1 N.C. Const, art. XIV. Mass. a stat concluded Carolina Court many the Revolution- In contrast to barring loyalists challenging ute from constitutions, the Articles of ary Era state un property of their was state’s seizure rights. had no Un- bill Confederation constitutional because North Carolina Confederation, however, der the Articles of trial provided jury for a Constitution power no over individuals Congress had legal was at issue in a property whenever respect authority with limited Treanor, Stan. L. Rev. at dispute. Thus, there the states. Kaminski at 18. These cases ex pre-Marbury 478-79. rights no need a bill of arguably was For panded to other areas of the law. authority direct over the Congress had no City May in 1784 New York example, people. Id. over or’s held a statute could not addition, judges operating state court in Rut treaty ride or international law Revolutionary under Era state constitu- unreported. also gers Waddington, v. developing principle judi- tions were Treanor, generally at 97. See Schwartz cial review in a series of state constitution- L. Rev. at 480-87. To arrive Stan. al cases decided before ratification of conclusion, New the court noted Marbury United States Constitution adopted common York’s constitution Cranch) (1 Madison, 137, 2 and, therefore, law the law of nations. (1803). occasions, L.Ed. 60 On several Treanor, Rev. at In what 58 Stan. L. purport- state courts ruled state statutes has as the become known “Case right jury were ing limit the trials Prisoners,” reported as Commonwealth example, For unconstitutional. (4 Call) (1782), Caton, a number 8 Va. Jersey 1780 New case of Holmes v. Wal- judicial judges review Virginia embraced ton, decision, unpublished an court finding pardons certain unconstitutional. permitting found a statute trial a six- Treanor, Michael The Case William jury man unconstitutional under the New Origins and the Judicial Prisoners 95; Jersey see Constitution. Schwartz Review, 143 Pa. L. Rev. 491 U. Parkhurst, also State v. 9 N.J.L. emerge from the above (describing upon points that “the act sol- Three First, ratifica- argument prior adjudged emn Holmes discussion. [in ] unconstitutional, Constitution, in that in- tion to be case constitutions, the first American operative”). In 1786 and New state constitutions, sources were Hampshire courts unconstitutional found Second, many indepen- act of law. providing certain actions for constitutions, unlike the Arti- damages totaling less than ten dent state pounds Confederation, bill-of-rights- had justice could be cles of peace tried Treanor, *21 to arbi- jury. type designed without a William Michael restrain provisions action, Marbury, including provi- trary government Stan. Judicial Review Before ed government guarantee” search and States “shall every sions related “Republican has a Form Finally, seizure. least some state of Govern- IV, Further, I, § ment.” art. Id. 4. Article developing principle courts the of were prohibited Section 10 entering states from judicial under their state constitu- review treaties, confederations, into or alliances prior to v. Madi- Marbury tions decades coining from money, imposts from laying son. or imports duties on exports except or Impact of B. The Ratification necessary extent inspection execute Adoption Rights of of the Bill of the laws, maintaining from during armies Indepen- United States Constitution on peace, entering times of from into alliances dent Constitutional Law. The State states, with foreign from in war engaging States United Constitution was de actually invaded, unless and from enacting signed the and their obliterate states legislation, certain of kinds such as bills of constitutions, preexisting but to instead attainder, laws, post ex facto and laws system draw them into a federal right I, impairing the of contracts. Id. art. their many largely of functions intact. As § 10. noted Herbert Wechsler in the first the Although draft Con- article, of his sentence seminal law review stitution contained a number of provisions of maintenance the state’s residual sover liberties,7 related to civil founders the the eignty price was “means and the Constitutional in Philadelphia Convention formation Union.” Herbert Wech did not consider whether include bill sler, Safeguards Political The Federal of rights in the proposed constitution until ism: Role the the States in Com days five from the end of the convention. position and Selection the National Labunski, Richard James Madison Government, L. Colum. Rev. Struggle Rights Bill for Labunski], Mason, [hereinafter George course, Of the proposed United States largely who responsible for the Decla- imposed important Constitution limitations Rights ration in Virginia Constitu- prevail on the law tion, states. Federal would Elbridge Gerry Massachusetts over Supremacy state law under proposed that committee be appointed Const, VI, art. 2. Clause.6 U.S. cl. rights provisions incorpo- draft bill of to be provided Guarantee Clause rated Unit- into the Federal Id. at Constitution. Clause, 356, 362-63, Supremacy Judges (striking Under “[T]he L.Ed. law], every [by shall be bound loyalty imposed by down oath Missouri Con- any Thing any Laws of Constitution or stitution). notwithstanding.” the Contrary State to Const, U.S. VI, result, art. cl. 2. As provisions original 7. Civil liberties draft has invalidated state prohibition against included Constitution provisions that violate the Unit- suspension corpus ex- writ of habeas See, e.g., ed States Romer Constitution. invasion, cept pro- case rebellion Evans, 620, 635-36, 517 U.S. S.Ct. post bills hibitions of of attainder ex facto (1996) (striking 134 L.Ed.2d laws, provisions impeachmеnt of all provision down Colorado constitutional af- officers, guarantee jury civil trials Limits, fecting gay rights); U.S. Term Inc. v. cases,'the trea- criminal narrow definition of Thornton, 779, 783, 827, S.Ct. son, religious qualifications ban on 131 L.Ed.2d 914- Const, I, 9, holding. § for office See U.S. art. (1995) (striking down constitu- Arkansas 2-3; 4; 3; II, Ill, § § els. art. art. cl. id. id. provision imposing tional term limits on VI, Ill, 1; § id. cl. art. id. art. cl. 3. Congress); Cummings members v. Mis- souri, 322-23, (4 Wall.) 277, 329-30, *22 addition, Rutland, to 8-12; opponents the Constitu- Allen The also Robert see in- why framers to tion asked the failed 112- Rights 1776-1791 the Bill Birth of of See, rights. e.g., of id. at clude a bill Rutland]. One [hereinafter many con- 87. noted that Opponents convention de- suggested the scholar has rights, a bill of and stitutions contained rights perhaps of cided not to include bill was they why approach a similar wondered else. anything of as much as fatigue out not States taken United Constitu- Labunski at 9. George views (citing tion. Id. at however, Overall, looked to the founders Mason). the supporters response protect individual liberties. the states to govern- the of the that Constitution Convention, the James At Constitutional powers one of ment was enumerated the purpose Wilson that the observed rights was therefore unneces- a bill rights the of indi- preserve states “to was sary many. Id. at 79. unpersuasive was to Federal I Records the Con- viduals.” proponents While of the Constitution (Max ed., 1787 356 Farrand vention of ratifica- were able to obtain unconditional 1937). Similarly, in Federalist No. Constitution, tion their success was of the the Madison under Constitu- stressed part by agreeing process obtained to a tion, to the powers reserved several “The to which future curative amendments which, objects, will extend to all the States the be considered. Constitution would affairs, ordinary the course of concern See, (providing at 25-38 e.g., Kaminski lives, the properties the liberties and in which process, overview of ratification ” n No. people.... The Federalist at states, Massachusetts, including seven Vir- Madison) 1982). (James ed., (Garry Wills York, ginia, New ratified the Constitu- liberty Madison theme in repeated amendments); tion Maier at proposed by declaring, No. 51 “In the Federalist striking of a deal (describing America, compound republic power Han- the Federalists and John between first people, divided surrendered future proposing cock that included governments.... between two distinct amendments the Constitution at Hence, security arises a double meeting political sup- first Congress No. rights people.” of the The Federalist elections). Hancock Re- port for in future (James Madison) (Garry Wills rights provisions lying part added). ed., 1982) (emphasis Pennsylvania Constitu- Massachusetts tions, pro- and Congress Madison drafted efforts, Notwithstanding Madison’s anti- posed to the ratified amendments United hay made much over the failure federalists known that came to be States Constitution spe- in more Constitution ensure See, e.g., Levy at as the Bill of Rights. power language cific states 35-43; Rutland Maier, Pauline preserved. would be People Debate the Con- Rights The addition of the Bill of Ratification: stitution, [herein- 1787-1788 86-95 did not affect United States Constitution above, the after As noted Articles Maier]. nature of state constitu- all expressly of Confederation reserved provisions related to civil liberties. tional Amendment, powers except specifically those enumerat- Tenth “powers Under the Opponents ed the states. Consti- delegated Con- States, why stitution, provision prohibited by tution wondered such a nor it to the respectively, or proposed omitted from the are reserved to the States Const, See, X. e.g., people.” id. at 90-92. to the amend. Constitution. *23 Plainly, States Constitution Toward a Liberty United Usable Past: Under (Paul judicial power does not to State delegate Constitutions 9 Finkelman & final, 1991). interpretation eds., authoritative provide Stephen E. Gottlieb As noted by of state constitutions. And while there are Cady, Chief Justice many of the States provisions United Con- Constitution, Our Iowa like other state states, limiting the power stitution of there constitutions, was to be designed are no provisions prohibiting restricting primary rights, defense for individual power interpret of state courts to au- with the United States Bill Constitution thoritatively state constitutions. their Rights serving only of lаyer as a second Schwartz, State v. N.W.2d of protection, especially considering the (S.D.2004) J., (Konenkamp, concurring) latter applied to actions (citing finding Tenth Amendment in that most government for of our obligation court had supreme state country’s history. decide whether South Dakota Consti- Mark A Cady, S. Pioneer’s Constitution:
tution required stricter standards for How History Iowa’s Constitutional required by search and seizure than the Uniquely Shapes Pioneering Our Tradi- Constitution). tion in Recognizing Rights Civil and Civil
The new amendments to the United Liberties, Drake L.Rev.
States Constitution created a Federal Bill
Rights.
provisions
not orig-
These
were
At the
adoption
time
the cur
inally
apply
thought
against
states.
rent
Iowa Constitution in
Barron
The issue was confronted in Barron v.
result,
was
As a
good law.
the Iowa Con
(7
Baltimore,
Pet.) 243,
Mayor
provisions,
stitution contains a number of
250-51,
(1833),
when the
L.Ed.
I,
including article
section
Iowa’s
strongly nationalistic Chief Justice John
provision,
search and
which
seizure
are
Marshall wrote for the
States
Su- designed
protect
individual
liberties
preme
provisions
against
encroachment
state officials.
of Rights
apply
Federal Bill
not
did
Const,
See generally Iowa
arts.
I—II.
against the states. Chief Justice Marshall
contemporary
While
sources related to
wrote, “Each
state established
constitu-
the Iowa Constitutional
are
Convention
itself,
constitution,
and in
tion
limited,
no
there is
reason to conclude the
provided such limitations and restrictions
Iowa
expected
framers of the
Constitution
the powers
particular govern-
of its
I,
section
article
8 would receive a
ment,
judgment
as its
dictated.”
Id. at
cramped
They placed the
interpretation.
Thus,
8 L.Ed.
Federal
Rights
beginning
Iowa Bill
did
Rights
supplant
Bill
the state
emphasize
Iowa Constitution to
its im
provisions upon
which it was
Ochoa,
portance. State
provisions
did it
patterned,
trump
nor
2010).
(Iowa
260, 274
priority place
This
state
adopted
constitutions
after its en-
that,
ment
observer
declare
has led one
actment.
Constitution,
more than the United States
rights
result of Barron
“that
the Iowa
“emphasizes
Constitution
Racheter,
protections
liberty
were more relevant
over mechanics.”
P.
Donald
most
than
over
people
protections
Rights
the The Iowa
Me
Constitution:
chanics,
Rights.”
federal Bill of
Paul Finkelman &
Constitutionalism of
Gottlieb,
Stephen
E.
(George
Introduction: State American
E.
Liberties,
eds.,
Christopher
Connor &
Constitutions and American
W. Hammons
2008).
Ellis,
Rights,
the Bill
Further,
passage
Like the
*24
Chairman
George
the
of
War Amend-
and
enactment
the Civil
on the Preamble
of the Committee
did not alter state constitutions
the committee want- ments
Bill of
stated
Rights,
Instead,
of
of
an
source
law.
Rights
independent
in the
Bill
provisions
Iowa
ed
overlay to
they
provided a federal
enlarge,
simply
not curtail the
that “would
and
regime recognized
“put
the
upon
of
and would
state
rights
people”
the
by
in
As
could
le-
Chief Justice Marshall
Barron.
guarantee that
be
every
record
Michigan Supreme Court Justice
there in order that Iowa
noted
gitimately placed
Cooley shortly after
the Civil
and most Thomas
might
...
... have the best
War,
power
De-
each state had the
to deter-
Rights.”
Bill of
clearly defined
in its
provisions
mine
itself what
are
Convention
bates
the Constitutional
of
of
(W.
protection
state
and “what
rep.,
Blair Lord
constitution
the State
Iowa
of
1857).
person
prop-
the
not
shall be thrown around
The committee did
consider
Cooley,
erty
Thomas M.
A
on
of the citizen.”
itself some kind of Committee
Consti-
the
Redundancy
Duplication.
Treatise on
Constitutional Limitations
tutional
Legislative
Revolutionary
Upon
Era Which Rest
the
Power
Like the drafters
(Le-
that
the
the
the American Union 88
predated
Unit-
States
constitutions
1987) (1868).
Constitution,
gal
Library
States
the Iowa founders
ed
Classics
indepen-
the
development
considered
War,
After the Civil
the Iowa
rights as serious
dent state constitutional
authority
recognized
independent
its
Court
business.
the
In
state constitution.
construe
Owen,
(1868),
McClure v.
26 Iowa
sum,
In
of the
the ratification
United
we declared:
subsequent
the
States Constitution and
had
im-
adoption
Rights
the Bill
no
require argument
It
not
to show
does
pact on the status of state constitutions as
principles
require
the ... same
that
Moreover,
independеnt
source of law.
to follow the
the federal courts
decisions
the
the
were
drafters of
Iowa Constitution
construing
State
in
stat-
courts
law,
well aware of this
feature of the
utes,
basic
rules
recognize
and to
of local
system
they
federalist
when
fashioned the
courts to
require the federal
follow
provisions
civil liberties
of the
given
construction
the Constitution
Iowa
Constitution
1857.
There is no
highest
State tribunal.
disregard
distinction
warrants
Impact of the
War Amend-
C.
Civil
rule in
the con-
involving
cases
Independent
ments on
Constitu-
of the
struction
State Constitution.
passage
tional
of the Thir-
Law.
Fourteenth,
teenth,
rights,
human
Iowa
questions
Fifteenth
On
traditionally
signifi-
after the
War
courts have
demonstrated
Amendments
Civil
Ralph,
In
cantly
relationship
remarkably
broad vision.
In re
altered
between
(1839),
Su-
and the
the Territorial
government
states.
Morris
particular,
preme
rejected
unlike
of the
a claim
a slave
provi-
most
Court
original
Rights
present
sions of
Bill of
in a free state should be returned
master,
Constitution,
law
that under Iowa
Equal
noting
his
Protection,
Process,
territory
Privileges
Due
a slave within
free
of Iowa
regarding
not
that the laws
“property”
and Immunities Clauses of
Four-
men
illegal
“to
of all colors
expressly
applied
apply
teenth Amendment
restraint
Const,
against
the states.
See U.S.
conditions.” While
based
Constitution,
XIV, §
yet unadopted
amend.
Iowa
tone,
preme
reasoning,
incorporate
and attitude toward
Court did not
broad
the Fifth
against
Ralph
pursuant
Amendment
the states
equality
striking
In re
stands
the Due Process
majority opinion
to the
Clause
Fourteenth
contrast
disastrous
Then,
Amendment.
McCollum v.
near-
McConaughy, 141 Iowa
N.W.
ly two decades later Dred Scott
San-
(1909),
that,
we noted
although
ford,
How.
L.Ed.
*25
we followed the
Supreme
United States
(1857).
691
pronouncements
questions
Court’s
on
Directors,
In
v.
24
Clark Board
Iowa
law,
federal
in
constitutional
our construc
(1868),
rejected
argument
266
we
the
tion
parallel
of a
provi
district
school
could forbid African
sion,
are
any
not
... by
“[w]e
bound
obli
attending
American children from
a school
gation imposed upon us in the federal
Clark,
with
on
In
grounds
whites
race.
to uphold
Constitution
a State statute
interpretation
applicable
our
statutes
because,
merely
in the view of the Su
by
conception
was driven
broad
article
preme
States,
Court
the
United
it
IX,
Constitution,
12
section
of the Iowa
unconstitutional.”
requires
which
education
“all
the
the
The responsibility of this court to exer-
youths
the
State.” Id. at 274-77.
In
cise independent
judgment
the
under
Co.,
Coger v.
Union
Northwest
Packet
37
Iowa Constitution was well illustrated in
(1873),
rejected
Iowa 145
we
the notion
Tonn,
94,
State v.
195
191
Iowa
N.W. 530
subjected
that African Americans could be
Tonn,
In
we considered whether
being
to different
when
treatment
trans-
holdings by
Supreme
United States
ported
public
by
reaching
earners.
In
this
States,
Boyd
Court in
v. United
116 U.S.
conclusion,
I,
we
far-sighted
cited article
616,
(1886),
6 S.Ct.
Clearly,
War Amendments to
the Civil
nature
con-
the
of state
tered
sup-
did
the United States Constitution
provisions
stitutional
related to search
Iowa
the
of the
Bill of
plant
provisions
Instead,
pro-
incorporation
seizure.
of the
Rights.
legal heritage
remarkable
Our
Rights
of the Bill
of
visions
the United
that
demonstrates
construction
against
the states
States Constitution
parallel
of a
Supreme
Court
through the Due Process Clause of
provision of the United States Constitution
a fed-
Fourteenth Amendment established
issues
does not bind our court on
under
eral floor related to civil liberties.
Independent state
the Iowa Constitution.
new,
analysis
nothing
is
but
consti-
incorporation
major
While
recognized in
long
has been
Iowa law.
advancement,
Mar-
Justice John
tutional
II
Incorporation
shall Harlan
was concerned
D.
Bill
Rights Through
protec-
of the Bill of Rights’
Due Process Clause.
nationalization
1925, the
lead
dilution
Beginning in
United States Su-
tions would
to a substantive
E.
incorporated
protections.8
of of
See Patrick
preme
provisions
Court
those
course,
system
abrogate systems
impossible
if the
8. Of
it is
to determine the
Court would
education);
degree
changes
financing public
in the
v. Loui-
to which
United
Johnson
1620, 1640,
siana,
356, 375,
Supreme
U.S.
92
States
Court’s Fourth Amendment
406
S.Ct.
152,
(Powell, J.,
(1972)
con-
jurisprudence were due to the "federalism
32 L.Ed.2d
167
"
predicted
changes
curring) (arguing
incorporating
'jot-for-
Harlan
or to
discount" that
jot
every
personnel
Supreme
of the
on the United States
and case-for-case’
element
Supreme
against the
would
Explicit
Court.
statements in
Sixth Amendment"
states
opinions during
post-incorporation
derogate "principles
era
of federalism basic
tendency
sensitivity
system”).
the United
show
to federalism concerns. See
The
Fono,
215, 229,
Supreme
427
consti-
Meachum v.
U.S.
96 S.Ct.
States
Court to underenforce
2532, 2540,
(1976) (re
scope
462
norms
to the
49 L.Ed.2d
tutional
due
national
recognized
jecting
impose
opinions
liter-
approach
through
the Court's
See, e.g., Developments
Due
Clause "a
man
in the Law—
Process
nationwide rule
ature.
dating
hearings");
Interpretation
transfer
San Antonio In
Constitutional
1, 44,
dep.
Rodriguez,
Harv.
Rights,
Sch.
v.
411 U.S.
93
95
L.Rev.
Dist.
differences,
1278, 1302,
(citing
the need for
S.Ct
L.Ed.2d
institutional
solutions,
(noting
federal-
imagine”
"it would
and sensitivities to
be difficult
national
greater
tending to
impact
a case
on the federal
dilute federal constitutional
with
ism
Dialogue
spell
Continuing
‘might
well
Higginbotham,
demise—under the
Federalism,
Rev.
U. Kan. L.
inescapable pressures of federalism —of
(1997). In the search and seizure-
many
provisions
other
of the Bill of
”
California,
Ker v.
case of
U.S.
Tinsely
Rights.’
E. Yarbrough,
John
1623, 1646, 10
L.Ed.2d
S.Ct.
Marshall Harlan: Great Dissenter
(1963) (Harlan, J.,
Justice
concurring),
(1992) (internal
quota-
Warren Court
wondered whether
United
Harlan
omitted).
tion marks
prepared
States
Court “[was]
In the period following
the incorporation
relax
Amendment standards
or-
Fourth
unduly
the States.”
fettering
ending
der to avoid
Mapp,
revolution
is no
there
later,
saw
years
A few
Justice Harlan
“a
strength
doubt
scope
danger
major
‘incorporation’ ap-
protection
Fourth Amendment’s
has been
provisions of the Bill of
proach
dramatically
—that
reduced
may be watered down in the need-
Rights
Pre-Mapp,
Court.
were a
there
pursuit
uniformity.”
less
Duncan
exceptions
couple
require-
to the warrant
Louisiana,
n.
88 ment; post-Mapp
nearly
there are
two
1466 n.
20 L.Ed.2d
S.Ct.
exceptions.
dozen such
California
(1968) (Harlan, J., dissenting).
In his
n.
Acevedo,
565, 582-83,
111 S.Ct.
*27
Florida,
in
dissent Williams v.
grounds state courts some kind As noted Professor G. Alan Tarr aberration, See, duty. but solemn more ago, than a decade emphasis Chandler, e.g., Burling v. 148 N.H. nature of state constitu- (2002) curiam) (per A.2d judicial tions of the “new federalism” is (recognizing that oath taken to honor state simply Tarr, “no longer new.” G. Alan justices’ duty makes it the constitution The New Judicial Federalism Perspec- apply the state constitution when it does tive, 72 Notre L. Dame Rev. Constitution); conflict with the Federal (1997). Contemporary courts and scholars Gaffney, Commonwealth v. 557 Pa. have recognized and reaffirmed the histor- A.2d (noting even when ically concepts well-established that state discharged, constitutional claim is provisions constitutional are independent court supreme indepen- must undertake parallel provisions of the Federal Con- analysis of Pennsylvania dent Constitution “ stitution and that state supreme courts provision ‘each time a of that fundamen- ” may depart from (citation existing federal prece- tal is implicated’ document omit- dent ted)); reaching their Johnson, regard- conclusions State v. 299 Wis.2d ing state constitutional law. (observing 189 n. 7 There are textbooks,10 duty to state monographs,11 court’s examine constitution hundreds of law articles,12 even if independently conclusion does not review and thousands report- 9.There is voluminous literature on the inde- Constitutions and Jennifer Friesen in State pendent power judiciaries Litigating of state to construe Constitutional Law: Individual Claims, Rights, provisions of their state constitutions. The Defenses. encyclopedic focusing most volume on indi- Friesen, rights See, vidual is Jennifer State Friesen, Consti- e.g., Jennifer State Constitu- Litigating Rights, tutional Law: Individual tional Litigating Rights, Law: Individual Claims, (4th 2006). Claims, (4th 2006) ed. Three ed. [hereinaf- Defenses Defenses Friesen]; frequently Holland, surveys cited Randy ter Stephen J. R. Gardner, McAllister, Interpreting are Jeffrey law James A. M. Shaman Jeffrey State & S. Sutton, Jurisprudence Constitutions: A Function in Constitutional Law: The Modem *29 Tarr, (2010); Williams, (2005), Experience System Robert F. a Federal G. Alan State Under- (1998), (4th Constitutional Cases standing Law: State Materials Constitutions and Rob- 2006). Williams, ed. ert F. The Law American State of Constitutions also New See Frontiers Watts, State Law: Constitutional Dual 11. See Tim J. State Constitutional Law of ment Enforce- (James (1991) (list- Development: Bibliography Norms A. Gardner & Jim A 3-5 of eds., 2011); Schapiro, ing Poly- monographs published prior Rossi Robert A. to on law). phonic Federalism: Toward the Protection state constitutional (2009); Rights Jeffrey Fundamental M. Sha- man, Equality Liberty Age in the Golden (listing 12. See id. at over 5-36 400 articles (2008); State Constitutional Law Michael published prior on to 1991 state constitutional Walker, Solimine & Respecting E. James L. grounds). tiny sampling A of the on literature Inevitability Courts: State The Judicial Fed- dealing state law constitutional with de- (1999); Mary eralism G. Alan &Tarr Cornelia velopments specific states includes Charles Porter, Beetham, Aldis State Courts in State Origin W. P. Johnson & Scott (1988); I, and Nation a Toward Usable Past: Washington Article Section 7 (Paul Liberty Constitution, (2008); Under State Constitutions Finkel- 31 Seattle U. L. Rev. 431 eds., 1991). Stephen Jones, &man Pаtty Methodologi- E. Gottlieb Search and Seizure— Many concepts opinion in this Conflicting Authority have cal Contention Results developed upon by been Deciding and elaborated Rob- When State and Federal Con- Similar Shaw, F. ert Williams in The Law American State stitutional Commonwealth Claims. v. Lowry, nature State v. 295 Or. 667 P.2d discussing independent See
ed cases
(1983)
J.,
(Jones,
concurring)
provisions.
of state constitutional
(“Any
lawyer
fails to
an
defense
who
raise
independent state
development
Oregon Constitution violation and relies
always
been a
law has
constitutional
solely
parallel provisions
under the fed-
su-
smooth
A number of state
process.
...
guilty
eral constitution
should be
frustration
preme
expressed
courts have
legal malpractice.”); Commonwealth
who
failed
advance
lawyers
have
(Pa.Su-
Kilgore,
A.2d
arguments.
In order
state constitutional
(finding counsel ineffective for
per.Ct.1998)
advocacy, number of
encourage proper
a
failure
raise state search
seizure
published
have
what
supreme
state
courts
claim); Jewett,
(noting
500 A.2d at
are
to in the literature as “teach-
referred
argument
too
of a
legal
often “consists
ing opinions,” which review the rationale
litany of federal buzz words memorialized
state
constitutional
cards”).
bluntly
See,
like baseball
As
stated
e.g.,
grounds.
Friedman v. Comm’r
(Minn. Judge
S.
Jeffrey
Sutton
Safety,
In light of the of state consti- constitution[.]”). its protection under own complete tutional claims lack of 1.08, generally § them, Friesen at 1-57 any pursue strategic reason not to (suggesting a manner which to in- judicial opinions number of state court raise and bring argue independent dicate failure state consti- state constitu- tional may malpractice. grounds). claim amount to tutional (2001), Rutgers Elephant” 564 Pa. Rea- A.2d Maintains —Massachusetts *30 (2002); Landau, Suspicion: Protecting LJ. 1462 L. The Search sonable Individual Pri- Jack Meaning vacy Oregon's During Stops Battling Sei- Search and Racial for Traffic Clause, (2008); Profiling, App. 87 L. Rev. 819 Jack 6 Suffolk J. Trial & Advoc. 215 Or. zure Landau, Buffone, (2001); Note, Depart L. Should State Courts Dennis J. from Traffic Seizure, Stops, Suspicion, Com- Fourth Amendment? Search and Reasonable Constitutions, Oregon Experi- Pennsylvania: State and the monwealth A State Constitu- ence, (2007); (2007); Douglas Analysis, L.J. Hol- 69 U. Rev. 77 Miss. 369 tional Pitt. L. 331 Miller, Comment, Wigdor, Comparative Begging den a Word? Richard De- What's in C. I,
Analysis § Article New York Lessons in Judicial Federalism Colo- from fer: Jurisprudence, State Constitution and the Fourth Amendment rado Search and 76 U. Seizure (2005); Interpreted L. F. the United States Constitution as Colo. Rev. Kenneth Kirwin, by Appeals the New York Court Minnesota’s Constitution: An Essen- Court, Cases, Supreme L. Rev. tial Search Touro Tool and Seizure Black, Minn., (2008); Note, "Shooting Colin M. Bench & Bar Nov. at 29. Yet, in an introduction tion of independent as observed to a nature of state constitutions obligation conference on state constitutional law de- and the of state courts in system. our federal velopments thirty years ago, Barry See almost “[o]ld Latzer, Howard, Or, Whose Federalism? habits die A.E. Dick Why hard.” In- “Conservative” States Should Develop troduction: A Recurrence Frequent Law, Their State Constitutional 61 Alb. L. Developments Fundamental Principles, (1998). (Brad- xi, Rev. 1403-10 See generally in State Law xxii Constitutional 1985). Mosk, Stanely ed., ley D. Constitutionalism: According McGraw Conservative, Both Liberal and report Advisory Texas Commis- (1985). L. Rev. 1081 While Relations, labels arе Intergovernmental sion on illu- sive—is our evolving among lawyers, “Even state seizure constitutional liberal, jurisprudence, conservative, or relatively law is and little lib- prac- unknown independent state ticed.” State constitutional Constitutions Federal ertarian? — analysis yield can outcomes that System might ap- at 2. peal to persons regard who themselves as situation, remedy In order to help politically “conservative.” Certainly the the Conference of Justices in Chief result in Torn favored the state over crim- passed urging a resolution all law schools And, inal defendants. the wake of the to offer a course in state constitutional law. Supreme States Court decision in Williams, Why Robert F. State Constitu- London, Kelo v. City New Matter, Eng. tions 45 New L. Rev. 2655, 162 (2005), 125 S.Ct. L.Ed.2d 439 (reproducing text of resolu- Court, Ohio independent state tion appendix). as an The resolution stat- grounds, provided greater protection to ed, among other that state things, constitu- property rights under Ohio Constitu- tional ... rights “declarations of are often tion than provided by were the United greater guaranteed than federally rights States Supreme Court. Norwood v. Hor “being and liberties” a competent and that ney, 110 Ohio St.3d 853 N.E.2d lawyer requires and effective an under- Additionally, standing of both the Federal Constitution Hampshire New Supreme Court found un and state constitutional law.” Id. at 912. der equal its state protection clause that An important right feature enjoy property subject state constitutional is that it scrutiny. Cmty. law is not intermediate Res. for Justice, Rather, Manchester, “liberal” or “conservative.”13 City Inc. v. (2007); constitutional law involves N.H. recogni- 917 A.2d see Shepard, 13. The Maturing New Judicial Federalism is often Nature asso- State Consti- Jurisprudence, tution Val. U. L. Rev. ciated with a seminal law review article writ- (1996) (citing Country- 423-24 & n. 9 Vern ten Justice William Brennan in which Jus- man, Why Rights? a State Bill 45 Wash. L. urged provide tice Brennan state courts to (1970), Falk, Jr., Rev. 454 B. Jerome Fore- protections more individu- A word: The State Constitution: More than being provided als than was the United Ground, “Adequate" 61 Cal. L. Nonfederal Court. William J. Bren- Force, (1973), Rev. 273 Robert State “Bills of nan, Jr., State *31 Constitutions the Protec- Rights": Renaissance, Neglect A Case the Need for Rights, tions Individual 90 Harv. L. Rev. (1969), L. 3 Val. U. Rev. 125 (1977). pointed by 489 out As Indiana Chief Project Report: Toward Activist Role for however, Shepard, Justice Randall scholars Rights, State Bilb 8 Harv. C.R.-C.L. L. Rev. judges advocating independent were Newman, state (1973), Note, 271 M. and Lawrence development well constitutional before Justice Rediscovering the Declaration California (1974)). argument appeared. Rights, Hastings 481 Brennan’s Randall T. 28 L.J. 818 authorities, Sandefur, dis Mess with we canvassed academic Don’t Timothy
also
authorities,
the State
and the law of
senting
Texas: How
Property Rights in
in
Property Owners
supreme
Protects
courts.
195 Iowa
Constitution
other state
See
Kelo,
&
Prop.
41 Real
Prob.
103-09,
Similarly,
the Wake
191
at 534-36.
at
N.W.
(2007)
228-30,
(arguing
Pals,
252
Cline, Ochoa,
Tr. J.
we canvassed
pro
public use clause
Texas Constitution’s
from other states
determine
cases
owners
property
protection
vides more
questions
on
and seizure
best result
Constitution).
than the
States
United
Pals,
the Iowa
805
under
Constitution.
Ochoa,
779;
775-77,
law
of state constitutional
The rebirth
283-84; Cline,
819
statute).
State
Incorporation
Reverse
Constitu-
state
These
courts demonstrated
Law,
tional
823,
S. Cal. L. Rev.
372 n.
for the
respect
Supreme
84
United States
Collins,
415;
(2011);
Court,
255
54 Miss. L.J. at
strongly disagreed
but nonetheless
Tarr, Understanding
see
also G.
Alan
reasoning. Ultimately,
its
the United
(1998)
State
Constitutions
Supreme
163 n.
119
States
Court abandoned much of
Belton, citing
Tarr When the United
among
things
[hereinafter
].
other
the de
the states. See Arizona v.
Supreme
incorporated
Court
in
velopments
Gant,
332,
exclusionary
against
338,
1710,
the states
in
rule
129 S.Ct.
Mapp,
1716,
(2009).
majority
485,
it noted a
of states had
See
173 L.Ed.2d
493
Vance,
651,
it.
generally
State v.
already
775,
367
81
adopted
U.S.
(Iowa 2010).
1689,
Georgia reaction). Further, the Iowa Su our caselaw under Constitution the California Wheeler, fed- evolving 22 to run to the parallel v. tended People Court preme Ochoa, 258, 890, P.2d 792 N.W.2d at Cal.Rptr. 583 eral caselaw. See 148 Cal.3d cases). (1978), (discussing of a 265-66 older Iowa 748, held the use 761-62 juror challenge to remove a preemptory States Court As the United par in a membership the juror’s based on hold back on substantive began scale racial, group religious, ethnic ticular Rights under the Bill of of the United ings This Constitution. violates California Constitution, we number of on a States by the same conclusion predated decision under path occasions took a different our under Supreme Court the United States applied inde state constitution. We have in Batson States Constitution the United law in Iowa state constitutional pendent 79, 89, 106 S.Ct. Kentucky, 476 U.S. v. see, e.g., protection, areas of equal 69, 1719, 1712, L.Ed.2d 82-83 90 Brien, 862, v. 896 763 N.W.2d Varnum (Iowa 2009); Racing Ass’n Iowa v. of state constitution- Cent dialogic nature (Iowa 1, (RACI), 7 Fitzgerald and horizontal—is 675 N.W.2d law—both vertical al 2004); Rogers, v. 293 N.W.2d Bierkamp should cause celebra- highly desirable and (Iowa 577, 1980), unusual tion, Maz- 579 cruel and handwringing. See Jason v. 773 zone, Early Bruegger, State State Rights punishment, in the see The Bill of 862, (Iowa 1, 2009), process, Courts, Rev. N.W.2d 883 due [here- 92 Minn. L. Cox, “[ajllowing v. (stating that see State N.W.2d inafter Mazzone] (2010); Skiles, v. N.W.2d expansive more read- Callender adopt courts to (Iowa 1999), in- and search and rights generates ings of constitutional 782; seizure, Pals, at be struc- see 805 N.W.2d rights might about how formation 267; “[sjuch Ochoa, Tague, N.W.2d State experimentation tured” and that (Iowa 2004); benefits”); Lawrence N.W.2d systemic produces Cline, 284-85; v. Cul Legal N.W.2d State Sager, Gene Fair Measure: 1970). (Iowa lison, 173 N.W.2d 538-39 Constitutional Status of Underenforced Norms, 91 L. Rev. Harv. course, persua free to Of we are follow many reforms the Warren (noting prece sive United States Court mat- already were well-established interpretation of state constitu dent states). of state law in a number of ters provisions. For in State v. example, tional rebirth of The interactions fostered (Iowa Breuer, 808 N.W.2d law dem- independent state constitutional 2012), persuasive prec we followed sovereign- system that the of dual onstrate require a search edent and declined closely more to the ty functioning is now present hospital in a physically warrant be federalist ideal. may a blood police room before obtain Independent suspected from person driving B. Iowa State Constitu- draw Incorporation. After Even where we have tional Law After while intoxicated. a different under the incorporation, requirement, path the first declined take however, course, Constitution, have re pro- law we was to ensure that Iowa Iowa jealously that we protection spectively emphasized the floor vided offered See, so. pro- guard right e.g., in criminal to do Constitution (Iowa Becker, 2012); cedure, the Fourth Amendment. including (Iowa Kurth, we Immediately following State v. incorporation, 2012) J., (Appel, concurring specially); adjusted incorporation primarily
821 Davenport, v. City “simply 135; Hensler 790 N.W.2d wrong.” Williams at see also (Iowa 569, 2010); 1 City Dorothy 579 n. Zaber v. T. The Beasley, Georgia Bill Of (Iowa 684, Alive, 789 654 Dubuque, Rights: 343, N.W.2d Emory Dead or 34 L.J. 2010); Ct., (1985) (“The Dykstra v. Dist. 414 Iowa 788 virtual piggybacking (Iowa 473, 2010); N.W.2d 480 State v. state clause onto the federal clause Wilkes, 838, (Iowa 756 842 n. 1 parasite N.W.2d renders the former a instead of an 2008); Hennings, In re Det. 744 N.W.2d source of authority.”). Ac- (Iowa 333, 2008); Hoskins, 337 v. cording Williams, State 711 to Professor a state (Iowa 720, 2006); N.W.2d State v. court interpreting its state constitution Beckett, 751, (1995); 532 N.W.2d should give weight less to United States (Iowa 204, Groff, 323 Supreme v. N.W.2d 207-08 Court decisions than the deci- 1982); Olsen, 216, State v. 293 N.W.2d sions of other states interpreting similar (Iowa 1980). provisions because “federalism and other concerns, institutional either explicitly or of the we questions One have faced in implicitly, pervade Supreme Court deci- developing our independent state constitu- sions declining recognize rights against law was an opinion tional whether states.” Williams at 137. Williams аc- States Supreme United Court under the cordingly discounts these decisions be- provision United States Constitution cause of possibility of underenforce- “presumption was entitled to a of correct- ment of the Rights Bill of of the United in the interpretation parallel ness” of a Otherwise, States Id. Constitution. as in- provision similar of the Iowa Constitution. by Souter, dicated Justice David then of Ochoa, declared, we among other Court, the New Hampshire Supreme things, that presumption there is no courts would be to “a reduced mere row of federal law approach. is the correct shadows.” State Bradberry, v. 129 N.H. 267. We came the same 68, 1380, J., (Souter, A.2d Supreme as Oregon conclusion Court Jus- concurring specially). Linde, Hans tice who three decades ago date, adoption described a state blind court’s To we yet adopt prima cy approach federal constitutional doctrine when inter- to state constitutional law. preting its state constitution as a “non primacy approach, Under the a state su that the sequitur preme court addresses state constitutional text, decisions such a moving Court’s under issues before to issues under the See, respect deserve presumptively but fix Federal e.g., Constitution. State v. Cadman, correct meaning (Me.1984); its in state also constitu- 476 A.2d Kennedy, Weeks, tions.” State v. 295 Or. 666 State v. 137 N.H. 635 A.2d (1993), P.2d Our view also 445-46 abrogated grounds other Knickerbocker, aligned leading commentators. As State v. 152 N.H. Williams, (2005); noted F. Professor Robert 880 A.2d Sterling Cupp, premise (1981).16 Or. 625 P.2d interpretations the Bill Rights primacy has approach the desirable pre- of the United States are feature avoiding unnecessary Constitution sumptively correct interpreting adjudications analo- and in obtain gous provisions Falk, Jr., ing finality. of state constitutions is B. Jerome Fore- leading approach Oregon, of this advocate cess”: Law in 49 Or. Unconstitutional Oregon Supreme Justice Hans Linde of the L.Rev. [hereinafter Linde, Court. See Hans A. Without "Due Linde]. Pro- hand, County Mitchell A More other The State Constitution:
word: (Iowa Ground, Zimmerman, 1, 18 “Adequate” than Nonfederal *35 281, (1973); 2012), Kurth, 273, see 813 N.W.2d at we L. Rev. 286 also and Cal. System at 70 in the Federal issues in Constitutions addressed federal constitutional primacy approach as “use- (characterizing liberty involving religious cases and unnecessary it federal seizure, because avoids ful” and respectively, search re- and courts decide allows state adjudications, questions. By served state constitutional law, pressure state takes off questions of regarding which exercising our discretion Court, pro- States the United first, can choose the claim to address we of the character of motes consideration of a path to the resolution case. clearest state, experimenta- promotes and state Our state approach con- tion). Though adopted a few law in the and seizure stitutional search courts, in and then honored perhaps required cautious. have area has been We followed,17the primacy more than breach must grounds that state constitutional be support has Justice approach had court, properly before sometimes well Linde18as as United enforcing our strictly preservation rules. John Paul Stevens.19 As Justice Court Lowe, For in State v. 812 N.W.2d example, by Justice Stevens: noted (Iowa 2012), 554, majority of 577 con- emerging preference court whether we declined consider bases of decision lieu stitutional adopt Zerbst-type should Johnson v. is, view, the my analytic ones federal voluntary for a knowing requirement and facilitating approach best suited I, under section 8 consent search article independent role of state constitutions parties Iowa Constitution because system. federal and state courts in our argument. specifically did not raise the Arsdall, 673, 475 Delaware v. Van U.S. party argues When a from federal caselaw 1448-49, 705, 1431, 89 106 S.Ct. L.Ed.2d but not assert a different substantive does (1986) J., 674, (Stevens, dissenting). 699 Constitution, we standard under Iowa a new ordinarily develop decline stan-
Instead,
adopted
more
we have
dard,
power
apply
reserve the
but
which
are
approach
meаsured
under
we
federal
a manner different
standard
consider
state or
free to
either
See,
Bruegger,
e.g.,
from federal caselaw.
provisions first.
in-
For
883; RACI,
N.W.2d
stance,
at
at
Tague,
we elected to
Cox
6-7. The distinction between a standard
in-
address the state constitutional issues
especially important
process
application
its
volving due
and sei-
first,
legal
high
where
leaving
principles
zure
the federal constitu-
de-
Cox,
grees
“totality
generality,
tional issues
781 N.W.2d
such
undecided.
772;
tests,
upon
at
Tague,
206. On circumstances”
tests based
Shaw, Comment,
Stuart,
398,
City
Principled
Brigham
W.
v.
17. See John
See
Interpretations
1950,
407-08,
1943,
State Constitutional Law—
126 S.Ct.
164 L.Ed.2d
Why
“Primacy”
Don't
States Practice What
J.,
(2006) (Stevens,
concurring); De-
Preach?,
They
54 U. Pitt. L. Rev.
1034-
Arsdall,
laware v. Van
475 U.S.
(1993) (noting, following analysis
of Ore-
1448-49,
L.Ed.2d
S.Ct.
cases,
gon
Oregon Supreme
that the
J.,
(1986) (Stevens,
dissenting); Massachu-
departs
primacy approach
often
from the
736-37,
Upton,
setts
466 U.S.
S.Ct.
offering explanations).
2085, 2089-90, 80 L.Ed.2d
Linde,
J.,
(1984) (Stevens,
concurring).
at 135.
18. See
Or. L. Rev.
doubt,
proportionality,” and tests based Stewart: when in
“gross
get a warrant.
Arizona,
“reasonableness.” See
upon
Mincey
385, 390,
Williams
169-71;
Sutton,
Jeffrey S.
Does—
What
98 S.Ct.
57 L.Ed.2d
Does Not—Ail State Constitutional
(reminding us
“it
is a cardinal
Law,
L. Rev.
59 U. Kan.
principal that ‘searches conducted outside
[hereinafter Sutton].
judicial process,
prior
without
approval
judge magistrate, are per se unrea-
part
of our
strin-
relatively
because
sonable under the Fourth Amendment—
rules, the
gent preservation
Iowa caselaw
*36
subject only to a
specifically
few
estab-
involving
in the area of search and seizure
”
lished and
exceptions’
well-delineated
independent
grounds
state
has been mod-
States,
(quoting Katz v. United
Cline,
joined minority
In
of
est.
we
88 S.Ct.
19 L.Ed.2d
jurisdictions
rejecting
“good
state
(1967) (footnotes omitted))).
short,
In
exception
exclusionary
faith”
to the
rule
sought
develop
we have
an Iowa search
Supreme
announced
the United States
jurisprudence
and seizure
Cline,
prevents
in Leon.
293.
Court
N.W.2d at
arbitrary exercise of government power in
Tague,
we held that
isolated incident
way
realistic
in
world.
today’s
crossing
provide
of
the centerline did not
probable cause or reasonable
suspicion
Challenges
Independent
C.
I,
stop
a traffic
under article
8 of
section
Constitutional Law
Constitutional
the Iowa Constitution. 676
206.
N.W.2d at
Nationalists.
rejected
sweeping
We
also
notion
1.
During
past
Introduction.
forty
of Samson v.
California,
years, “constitutional nationalists”20 have
(2006),
Finally, uniformity
converts a
su-
abled from independently considering state
legal
preme court into a
chameleon that
al-
constitutional claims because of their
changes
changes
color with the
latest
leged
quality
against
lack of
these
cuts
jurisprudence
States Su-
*40
important
in
trends
federal law.
preme
writings
Court. Do we retire the
of
Brandéis, Holmes, Cardozo,
Justices
event,
In any
the notion that members
Stone,
Jackson
views
because their
are
States
have
Supreme
United
Court
no
cited
of
longer
majorities
current
superior
some
of
wisdom
we
kind
Supreme
And
Court?
what must
when interpreting
show deference to
legal
about the Iowa
tradition and culture
provisions of the Iowa Constitution is
Ralph
proge-
as reflected in In re
and its
History
best.
other-
doubtful at
shows
ny? As former
Justice
Indiana
Chief
of
prefer
wise.
of us
deci-
Most
would
Shepard
Randall
noted:
to the
judges
Ralph
sions of Iowa
in In 're
respectable
Supreme
work of
Court
alternative
there
the United States
[W]hat
independent
juris-
in
ap-
state constitutional
Dred Scott and the
Iowa
generous
prudence?
proaches
Coger
it a nation where civil
in Clark
tо the narrow
Is
activity depend
approach
Plessy.
liberties at all
of
in
like Korematsu
levels
Cases
left,
center,
States,
solely on whether the
or
United
323
65 S.Ct.
U.S.
(1944),
right of
Supreme
Court is
confidence. See as we Constitutions, La. L. Rev. tions and a lack demeaning and inaccurate assert (1989). Indeed, it & n.28 judicial and local of talent the state through most of suggested been has Solimine & Walker at 132. arena.” up have come history, federal courts fact, that in In there is reason believe of American basic protection short jus- respects, supreme court some state & Walker at 28. rights. Solimine may positioned tices be better than United Further, extraordinary court state Justices to decide have outstanding judges reputations As of constitutional law. questions state what is now a substan- helped develop above, are affected judges state noted body constitution- tial of state and will not face by federalism concerns others, Among distinguished law. state al pressures underenforce Shirley judges as Abrahamson such Further, as Justice Abrahamson norms. Utah, Wisconsin, Durham Christine out, law is area of criminal pointed Vermont, Kaye of Hayes Thomas Judith judges. for state court expertise traditional York, Stanley Oregon, New Hans Linde of Abrahamson, L. 63 Tex. Rev. at 1148-49. California, Ellen Peters of Con- Mosk point made a similar Ginsberg Justice necticut, Jersey, Pollock New Stewart Robinette, have a noting that state courts Indiana, Ter- Shepard Randall Marsha point” assessing the “unique vantage Iowa, Washing- nus of and Robert Utter of stops. constitutional dimensions traffic in their legal ton have enriched the culture 117 S.Ct. at There is no states and across nation.23 L.Ed.2d 355. these out- basis to discount work of event, any required in consti- what is standing supreme justices. court Is brilliance, adjudication is not but tutional any Justices there reason believe that Holmes, Cardozo, long said O’Connor, judgment. and Souter As Justice Holmes intelligent capable ago serving were less when when Judicial less Conservative, Many pub- Tex. L. judges state court of these ism: Both Liberal and Pollock, (1985); scholarly thoughtful on inde- Rev. 1081 Stewart G. Ade- lished articles See, e.g., pendent quate Independent as a state constitutional law. State Grounds Abrahamson, Shirley S. Balancing Relationship Between Divided We Stand: Means of Union, Courts, Rev. 977 Tex. L. State in a State and Federal Constitutions More Perfect L.Q. Pollock, (1985); (1991); Shirley Hastings Stewart G. Const. Constitu- Abrahamson, Separate S. Con- Sources Fundamental Criminal Law and State tions (1983); Rutgers L. Rev. Emergence Rights, stitutions: The State Constitu- (1985); Law, Shepard, Rev. Shir- T. 63 Tex. L. Randall Maturing Nature tional Abrahamson, ley U. L. S. 30 Val. *41 Jurisprudence, State State Constitution Reincarnation of Temus, (1996); (1982); Courts, L.J. 951 Judith S. Rev. 421 Marsha 36 Sw. Remarks: Women, Kaye, Chiefs, Symposium, Constitutional Great Great Contributions State Utter, (2011); Alb. L. Rev. 1569 Robert F. Centwy Law to Federal- the Third American (1988); ism, Kaye, 13 Vt. Judith S. Principled Decision-making in State L.Rev. Practice Washington’s Experience, Dual and Princi- Constitutionalism Practice Constitutionalism: (1992); (1987); Temp. F. 61 St. L. Rev. Hans A. Rev. 1153 Robert ple, John's L. Utter, Linde, Theory Swimming E in the Jaws the Crocodile: Pluribus —Constitutional (1984); Courts, L.Rev. Hans 18 Ga. Court on Federal Constitution- State Comment Linde, Disposing A. Things Rediscovering the on State First First: al Issues Wlten Cases Grounds, Rev. 1025 9 U. Balt. L. Rev. 379 Tex. L. Rights, States’ Constitutional Bills of (1980); Mosk, (1985). Stanley State Constitutional- Massachusetts, ley, is vain to Significant Developments “[I]t in State suppose Law, 1988, that solutions can be attained Constitutional 2 Emerging Is merely by logic general propositions (1989). sues St. L. Const. It would be nobody law which disputes.” Vegelahn v. simply easier to match our constitutional Guntner, 167 Mass. 44 N.E. against cases precedents, briefly (1896) (Holmes, J., conclusion, dissenting). Phrased state our and call it a day. somewhat differently, “The life of the law The problem with approach, howev- logic, has not been it experience.” has been er, is ignores it obligation Holmes, Oliver Wendell The Common Law construe our independent state constitu- (1881). tion. Efficiency was not goal above,
Notwithstanding the no one could framers of either the United States or claim that state judges Constitutions, court Iowa оr in Iowa and it should not be other perfect. ours, states are Justice Linde either. If efficiency were the consti- observed that “most state courts had a goal, tutional there would be no bicameral poor taking seriously record of legislature, individ- separation no powers, feder- ual rights procedures and fair promised in alism replaced would be by a unified na- their states’ rights.” state, bills of Hans A. would, tional course, and there be Linde, E Theory Instead, Pluribus —Constitutional no state courts. we must do the Courts, and State 18 Ga. L. Rev. job assigned to us in our constitutional (1984). To the extent there are shortcom- system justices as of the Supreme Court of however, ings, solution, Iowa, be,24 Professor challenging may as it and de- pointed Paul Bator out thirty years over every cide each and independent constitu- ago, is to “create conditions to opti- assure tional claim we confront based on Iowa law performance mal by the state courts.” and the peculiar facts. Bator,
Paul M. The State Courts and Fed- 6. Summary. State supreme jus- court eral Litigation, Constitutional 22 Wm. & tices have a responsibility Mary L. Rev. can, very job do the best we in each and Efficiency. Although case, rarely pub- it is every and to decide state constitu- lically advanced as a engag- law, facts, reason for not tional issues based on and the ing in independent state constitutional best constitutional wisdom we can collec- analysis, simply adopting tively the results of Arguments muster. marshaled might federal cases be defended as more against independent state constitutional efficient for courts and judges. Develop- grounds parallel such as claims that lan- ing meaningful guage state consti- demands uniform ignores outcomes analysis tutional is hard work. Ken Gorm- the open-textured qualities of most consti- course, ability engage 24. Of thought- courts do not have the same resources avail- ful, independent analysis of state constitution- able to it as the United States Court. al issues is threatened when the docket of a ap- Court decides supreme unmanageable. court proximately seventy As cases in a nine-month out, term, pointed Robert Williams justice has receiving creation with each the assis- Iowa, appeal of intermediate many courts of tance of four law clerks. we have a states larger has alleviated the workload on state somewhat caseload and one law Nonetheless, supreme courts per justice. and allows for more consid- clerk with the cre- development ered Appeals state’s constitutional ation of the Iowa Court of and the *42 Williams, research, law. See Robert computerized F. Introduction: prac- advent of Celebrating Judge King’s ability Michael Patrick Ca- tical to meet our Iowa constitutional reer, xi, (2004). Rutgers responsibilities 35 LJ. xi-xii develop It is and state constitution- undeniable, however, supreme prior most state al law is much enhanced over decades. 830 (1928), 438, 564, L.Ed. 944 cases un- 48 S.Ct. 72 Claims provisions.
tutional
by
of the tele
challenged
the advent
was
and Federal Constitutions
der State
supplant
di-
ultimately largely
results runs
phone
to uniform
and
come
should
approach.
Amendment
by
expeetation-of-privacy
to the Tenth
an
rectly counter
ed
512,
pro-
Katz,
353,
at
of the states
389
88 S.Ct.
concepts
See
U.S. at
and Madisonian
liberty.
583;
360,
security” for
at
“double
at
88 S.Ct.
viding a
19 L.Ed.2d
id.
law,
(Harlan, J.,
state
state
concur
interpreting
831
Jones,
being “illogical
display
as
on full
where the
unmanageable”;32
Court
involving,
with each
unwieldy”;33
government
considered whether the
violat-
case,
tape
duct
on
Amendment’s
ed
Fourth
“more
Amendment
placing
to the
step
junkyard.”34
frame and a
closer
Positioning System
Global
tracking device
Scalia,
suspect’s
on a
rely-
vehicle. Justice
problems
its Fourth Amendment
originalist
his
ing
interpreta-
brand of
recognized by
have been
the Justices
cases
Amendment,
tion of
Fourth
found that
Supreme
the United States
Court
government
action amounted to tres-
Gant,
at
several decades. See
556 U.S.
pass and was thus
search.
unlawful
349,
1723, 173
500
129 S.Ct. at
L.Ed.2d at
Jones,
at-,
949,
565 U.S.
132
at
S.Ct.
(noting
history
“checkered
of search-
Alito,
181
at
joined
L.Ed.2d
918. Justice
Acevedo,
exception”);
incident-to-arrest
members,
by three other
583,
1993,
found Justice
at
832 only, of uniformity By way of illustration a number guidance or
cases to introduce courts, Iowa, like have re- supreme state simply untenable. “good exception to the jected the faith” because of state of Perhaps part in exclusionary Similarly, su- rule.35 state of search and precedents, field preme rejected approach courts have of vibrant areas is one of most seizure of the United States majority of law. state constitutional respect requirements to the of affidavits kind have of states some warrants,36 supporting ability search Barry area. See law the constitutional gar- law to search curbside enforcement Latzer, Decentralization Toward Crimi- warrant,37 busi- bage without whether Law State nal Procedure: Constitutional parties ness records the hands third J. Disincorporation, 87 warrant,38 and Selective may without produced be (1996) (esti- 68, Criminology L. 92 part Crim. & random road blocks as whether fifty mating forty-seven of the states effort to alleviate drunk run afoul driving principles,39 whether departures precedent). from federal seizure some Marsala, 150, Morris, 111, 90, See, Vt. 680 93-94 e.g., v. 216 Conn. 165 A.2d 35. State State, (1996); 11.04[3], 58, (1990); § 11- v. see also 2 Friesen at A.2d 59 Mason 534 579 (Del. 242, 1987); A.2d 254-55 State v. 38 11-39 & nn. 164-65. Guz 981, 660, man, Idaho P.2d 677 122 842 Zanter, 624, (1992); N.W.2d 634 v. 535 State See, DiGiacomo, e.g., 38. v. 200 Colo. Charnes Canelo, 376, (Minn. 1995); v. 139 N.H. State 94, 1117, (1980); People v. 612 P.2d 1120-21 1097, (1995); v. A.2d 1105 State Novem 653 153, Jackson, 430, 72 Ill.App.3d 116 Ill.Dec. 820, brino, 95, (1987); 857 N.J. 519 A.2d 105 85, McAllister, (1983); 452 State N.E.2d 89 v. Gutierrez, 431, 116 State v. N.M. 863 P.2d 17, 866, (2005); 184 875 875 Com N.J. A.2d 1052, (1993); Bigelow, People v. 66 1066 DeJohn, 32, v. 486 Pa. 403 A.2d monwealth 630, 417, N.Y.2d 497 488 N.E.2d N.Y.S.2d 1283, (1979); Thompson, 1289-90 State v. Carter, 709, 451, (1985); 322 N.C. 458 State v. 415, (Utah 1991); 2 abo 810 P.2d 418 see 553, (1988); 370 S.E.2d 554 Commonwealth 11.04[5], at 11-41 to 42 & nn. 176- Friesen Edmunds, 374, 887, v. Pa. A.2d 905- 526 586 79. Oakes, 171, (1991); Vt. 06 State v. 157 598 119, (1991); 2 A.2d see also Friesen 126-27 See, Police, e.g., Dep't 39. 443 v. State Sitz 11.05[2], § nn. at 11-67 to 11-69 & 297-315. 209, 744, (1993); Mich. 223-25 Safety, v. Comm’r Pub. Ascher 519 See, Jones, 317, e.g., 36. v. 706 P.2d 322 State 183, (Minn.1994); see v. 187 also State (Alaska 1985); Detroy, State 102 Hawai'i v. Henderson, 293, 1057, 114 Idaho 756 P.2d 13, 485, 490, (2003); 72 493-94 Com P.3d (1988) (invalidating checkpoint sobriety 1063 363, Upton, Mass. 476 monwealth v. 394 legislative police express lack authori- where Cordova, 548, (1985); v. N.E.2d State ty, particularized suspicion, judicial ap- 211, 30, (1989); People 109 N.M. 784 P.2d 36 proval grounds prior on state Johnson, 398, 618, 497 N.Y.S.2d v. 66 N.Y.2d United States Court's decision (1985); 488 445 State v. N.E.2d uphold general them on a reasonableness 1033, Worsham, 170, Or.App. 834 P.2d 114 Department Michigan standard State Po- Jacumin, (1992); v. 778 1036 State S.W.2d Sitz, 444, 2481, 110 lice v. 110 S.Ct. 430, Jackson, (Tenn. 1989); 436 v. 102 State (1990)); Boyanovsky, 412 v. 304 L.Ed.2d State 432, 136, (1984); Wash.2d 688 P.2d 141 see 131, 711, (1987) (invalidat- 743 P.2d 712 Or. 11.05[1][a], § 2 also at 11-60 to 11- Friesen ing sobriety warrantless under roadblock 263-65, 61 &nn. 268-71. prior to Su state constitution See, Tanaka, 658, Sitz); preme v. Haw. v. e.g., State 67 701 Court’s decision Pimental Goss, 1348, (R.I. (1985); Transp., Dep’t P.2d v. A.2d State Mesiani, (2003); (same); 1989) City N.H. A.2d Seattle Hempele, 120 N.J. 576 A.2d 800- Wash.2d P.2d 11.09, (1990); (same); Galloway, § 11- State v. 198 Or. Friesen 11-110 to (2005); App. P.3d State v. 112 &n. 479.
S33 *45 authority a show of or requires contemporary balancing seizure “legisla- involves whether a belief that is not reasonable one tive or social facts” about which reasonable sufficient,40 free to a valid leave is whether persons may differ. See Williams at 172- requires knowing consent search 73; see also Neil Coleman McCabe, Legis- waiver,41 voluntary the scope permissi- lative Facts as Evidence in State Constitu- stop,42 ble to a pursuant searches traffic Analysis, tional Search Temp. 65 L. Rev. scope the extent curtilage,43 (1992). 1229,1242-51 validity scope expec- of reasonable privacy interpretive tations of as an tool.44 demonstrates, above As the material good there develop áre reasons to an inde- A number courts and scholars have pendent body of state constitutional law in emphasized search law and seizure especially amenable to state the search and seizure arena. We have analysis. particular- This is judicial company in this plenty under- ly true United as the taking. “balancing Court utilizes so called tests” Summary. E. The First American
which contemporary weighing involve were Constitutions state constitutions. of competing pragmatic considerations Many of the initial state constitutions had may about dif- persons which reasonable and seizure provisions, which generally fer. T. Aleini- Alexander koff, Age Law served as model for as he Constitutional Madison draft- Balancing, 96 Yale L.J. 943 Such ed Nothing the Fourth Amendment. See, Hill, 735, Brown, 323, (2006); e.g., People 40. v. 929 738-39 P.2d State v. Ohio 99 St.3d ( 1996); 175, Harris, Greenfield, (2003); State v. 228 Conn. 792 N.E.2d 179 State v. Colo. 879, 62, State, 284, (1993); (La.Ct.App.2005); 634 883 v. A.2d Jones 916 289 So.2d Com- Quino, 856, (Del.1999); Gonsalves, 658, 745 A.2d 869 State v. v. monwealth 429 Mass. 711 161, 358, 108, (1992); (1999); Askerooth, 74 Haw. 840 P.2d 362 Com N.E.2d 112 v. State Stoute, 782, 353, (Minn.2004); monwealth v. 422 Mass. 665 681 N.W.2d 363 State v. 93, (1996); Bauer, 105, 892, N.E.2d 95-98 In re 307 Mont. P.3d 36 895 Welfare of E.D.J., 779, 1993); (Minn. (2001); 241, Bayard, 783 State v. 119 Nev. 71 P.3d 215, 30, 498, curiam); Bricker, Clayton, (per State v. 309 Mont. P.3d 45 502 State v. Quezada, 258, (2002); 513, 800, (N.M.Ct. 34 v. State 141 N.H. 139 N.M. 134 P.3d 806-08 79, Tucker, (1996); 11.07, § 681 A.2d App.2006); 80-81 State v. see also 2 Friesen at 11- 158, 401, 372, (1994); 375-76; 136 N.J. 642 A.2d 405-06 83 11-84 & nn. id. Matos, 449, 11.010[3], § v. 672 Commonwealth 543 Pa. at 11-140 to & n. 11-141 588. 769, (1996); Randolph, A.2d 776 State v. 74 330, (Tenn.2002); S.W.3d 336-37 State v. See, Webb, 462, e.g., 43. State v. Idaho 130 943 681, 498, Young, 135 Wash.2d 957 687- 52, Bullock, P.2d (1997); v. P.2d 57 State 272 Jones, 378, (1998); 89 v. State 193 W.Va. 456 361, 61, (1995); People 901 P.2d Mont. 75-76 459, (1995); & S.E.2d 467 n. 17 also 2 see Scott, 474, 920, v. 79 N.Y.2d N.Y.S.2d 583 11.010[1], Friesen § at & 1328, 11-116 to 11-118 n. (1992); 593 1337 State v. N.E.2d Dix 499. son, 195, 1015, (1988); Or. 766 1024 307 P.2d 1, 988, Kirchoff, State v. 156 Vt. 587 A.2d See, Trainor, 250, (1991); 11.04[1], e.g., § 41. 83 Hawai'i see also 2 Friesen 995-96 818, State, (1996); 147-48, 150-51, 925 P.2d 828 440 to 11-37 Penick v. at 11-34 nn. 154— 547, (Miss. 1983); Carty, So.2d 551 State v. 55. 632, 903, (2002); 170 N.J. A.2d 790 907 Com- Cleckley, monwealth v. 558 Pa. A.2d See, Wallace, e.g., 44. State v. 80 Hawai'i 11.012, (1999); § see also 2 Friesen State, (1996); Moran v. P.2d 11-147 to 11-148 n. 618. (Ind.1994); State v. N.E.2d Campbell, 306 Or. 759 P.2d 1048- See, Moorman, 11.03[2], (1988); People Ill.App.3d § e.g., 42. see also Friesen Ill.Dec. N.E.2d 11-11 to nn. cumstances, that Baldon’s consent cannot adoption States Constitu- I, voluntary under article changed the be considered Rights Bill of tion We as an section 8 of Iowa Constitution. indepen- constitutions status Indeed, that when an individual is faced indepen- law. conclude dent source of *46 consenting to with the so-called “choice” provi- of state constitutional dent nature re- adoption wide-open suspicionless the searches or reinforced sions was maining prison period in for an extended Tenth Amendment. time, truly the not a volun- “choice” is history, of our constitutional most For tary a reject rigidly one. We thus formal- Rights, of the Bill of of the provisions istic consent doctrine in which the mere did not apply Constitution United States with a person presented fact that a is In the middle the states. against to choice sufficient make con- Hobson’s is century, States Su- twentieth voluntary. on opinion sent We base began incorporate preme provi- Court to the common sense observation that where Rights, Bill of includ- sions the Federal makes the stakes nonconsent state Amendment, provide to a ing the Fourth no high person so reasonable would against transgres- state protection floor of otherwise, choose there is no realistic with im- Incorporation sions. came two all. We we start- choice at continue what consequences. consequence One portant Pals, insisting ed in that consent namely, tendency was to incorporation dilute I, doctrine under article section 8 must protections in the substantive order ability indi- realistically assess the avoid a rule that did not take nationwide say “No.” vidual to and experi- into account local conditions was consequence ence. Another that the expressed well For reasons community legal focus of the shifted to- opinion, case majority the outcome this protections ward federal constitutional It is the reasonable one. would be away independent protections from plain Action to maintain consent Supreme state As the authority voluntary constitutions. Court unlimited search was steadily proceeded scope reduce consequence when the of refusal is contin- however, protections, ued long-term incarceration. reinvigorate indepen- courts their began It would possible that such consent analysis. dent state constitutional voluntary by found be the United Independent law is state constitutional under the Fourth States now a of our part well-established state’s Amendment. v. Gian United States Cf. legal (1st Cir.1990) fabric. The state consti- netta, F.2d n. 4 majority tutional approach utilized (stating question “a of coercion would arise I, in this case under section 8 is article any ‘agreement’ as to contention that to a logical, history of both comports probation search condition constitutes Constitutions, search”). Iowa general consent to The United solidly supported and is in our caselaw and Court, however, has often juris- well-reasoned caselaw of othеr applied “totality test of circumstances” dictions. Schneckloth, way. very in a unrealistic Bostick, 438- Florida
III. Resolution the Constitutional 2382, 2388-89, L.Ed.2d 111 S.Ct. in This Issues Case. (1991), the Court determined majority opinion by passengers in this de- that consent to search case cides, particular voluntary though facts bus armed offi- under and cir- even prevented from roled on the three passengers leaving charges cers latter on No- vehicle. space confined Similar- vember 2008. In his agreement, ly, Delgado, conditions, INS v. he specifically agreed several 1763-64, 104 S.Ct. L.Ed.2d including: (1984), the Court determined consent I shall place reside at the designated in voluntary search was even though the attached Parole Release instructions guards armed blocked the exits to a work- change shall not residence unless I By opinion to base our place. choosing approval receive from my supervising Constitution, area on the Iowa we officer. finality, necessity obtain avoid the of at- I will submit my person, property, place *47 tempting contradictory to follow and residence, vehicle, personal effects to authorities, and develop doubtful time, search any with or without a body of law. warrant, warrant of arrest or by any parole reasonable cause officer IY. Conclusion. or law enforcement officer. above, I expressed join For reasons use, I shall abstain from the purchase, majority and opinion concur possession, or of any drug transfer un-
judgment
this case.
prescribed
by
less
for me
physician,
a
and
drug
shall submit
to
monitoring
MANSFIELD,
(dissenting).
Justice
tests
by my
when directed
supervising
respectfully
I
I believe
dissent.
officer.
I shall not associate with drug
Constitution,
Iowa
like
users or
on parole
sellers while
and shall
Constitution, permits
government
to
places
drugs
avoid
where
are sold.
require a prisoner
parole
as a condition of
later,
Six
police
months
Bettendorf
were
agree
during
to searches
his or her
Motel,
patrolling the Traveler
“probably
of parole.
term
Such searches should es-
single
highest crime location that we
when,
here,
be
pecially
upheld
they are
city.
have in our
check it every
We
day
under the control
with the
authoriza-
several
day
times a
and run across all
officer,
parole
and when
tion
reason-
manner of
activity
criminal
at that
loca-
suspicion
parolee
able
that the
exists
has
tion,” including drugs, prostitution, and
a
committed crime or violated his terms of
weapons
Typically,
police
offenses.
acknowledge
I
that
parole. While
much of
check
plates
the license
of all
parked
cars
disagreement
my
relates to this court’s
at the motel.
Ochoa,
decision in
(Iowa 2010), I
N.W.2d 260
believe the
Officer
a
Tripp
plate
ran
license
check
flawed,
present decision is legally
even and
a
registered
determined that
vehicle
accepting Ochoa.
parked
Baldón was
the motel. He
also determined that Baldón
prior
had
I. Facts.
driver’s license revocations and was on
defendant,
thirty-one-year-old
parole.
Isaac
Officer
called in to
Tripp
head-
Baldón,
quarters
who had a substantial criminal
parole
and asked
Baldon’s
history
theft,
including first-degree
contacted,
third-
officer be notified. When
Bal-
burglary,
officer,
Peterson,
with
degree
possession
parole
intent to
don’s
Officer
gave
substance,
permission
deliver a
transporta-
controlled
for Baldon’s hotel room and
felon,
tion of a firearm
being
as a
a vehicle to be searched. Officer Peterson
firearm,
possession
pa-
coming
felon
of a
was
also said he
to the
would be
motel.
Ochoa
front
II. Parole Searches
Our
went to the
desk
Tripp
Officer
Decision.
Baldón
learned that
motel and
motel. This
a room at the
registered to
decision, the
In a 6-3
the authorized Daven-
was different from
parolee
in 2006
Supreme Court held
pa-
had
to his
provided
he
port residence
police
with
could be searched
officer
ar-
Officer Peterson
particularized suspicion
officer. After
out a warrant or
role
Peterson,
law
requirеs
on a California
rived,
Officer
based
Tripp,
Officer
pa
every prisoner eligible for release
officers went
Baldon’s
police
two other
“
‘agree writing
subject
role
to be
Receiving
on the door.
and knocked
room
or
search or seizure
officer
answer,
again a minute or
they knocked
no
day
any
other
officer at
time of the
peace
an-
point,
Tripp
Officer
later. At this
so
night,
or
with or without
search warrant
and that Baldón
they
police
were
nounced
”
cause.’
without
Samson
the door.
open
needed
843, 846,
California,
S.Ct.
door in his
opened the
When Baldón
165 L.Ed.2d
underwear,
recognized
Peterson
3067(a) (West
Officer
§
(quoting CaLPenal Code
*48
A sixteen-year-old girl
2000)).
him and said hello.
that
“is an
parole
The Court noted
sitting
imprisonment
a T-shirt was
on the
of
wearing only
established variation
criminals,” and that
state is
convicted
underwear was on
floor.
bed.45 Her
usually “willing
parole only
extend
be
of the
took her outside. Offi-
One
officers
it upon compli
it is able to condition
cause
Peterson, and the
Tripp,
fourth
cer
Officer
Id. at
requirements.”
ance with certain
a search of the room and
officer conducted
at
126 S.Ct.
165 L.Ed.2d at
nothing illegal.
found
(citation
quotation
marks
internal
keys
Tripp asked Baldón
Officer
omitted).
severely
“have
dimin
Parolees
outside,
went
Tripp
Officer
to his car.
privacy by
virtue of
expectations
ished
vehicle, and
began searching the
found
852, 126
at
at
their status alone.” Id.
S.Ct.
He
marijuana
trunk area.
baggie
2199,
I have serious concerns giving about er deference in- to federal proach terpretations treats a United States Su- of the Fourth Amendment. preme just Court decision as another dish search Because the and seizure clause (“The degree on the menu. See id. at 267 the Iowa Constitution nearly verbatim we follow to which language to the of the Fourth Amend- precedent, any other precedent, Court ment, interpreting cases the Fourth solely upon ability persuade its depends persuasive are Amendment —but decision.”). the reasoning us with binding interpretation —on The decisions are rendered Iowa We usually interpret Constitution. legal exceptional nine scholars of dis- purpose scope Con- Iowa They tinction. come after each case stitution’s and seizure provisions subject has been the adver- extensive interpretations track briefing, argument, *49 sarial and attention. the Fourth Amendment. contrast, By composed thirty- this court its Christopher, State v. 757 N.W.2d in
page opinion state Ochoa (Iowa (citation 2008) omitted). scope “The the benefit of any argument without other of Iowa’s purpose search and seizure argument. than federal constitutional See clause is coextensive with the federal Ochoa, 08-0412, State v. No. 765 N.W.2d interpretation court’s the Fourth (Iowa 2009 WL at *2 n. Carter, Amendment.” State v. 733 N.W.2d Ct.App.2009) (noting that Ochoa “has not 2007). (Iowa 333, 337 “The Iowa provi- that the asserted state constitutional I, generally interprets article section interpreted differently sion should be than 8 of the Iowa Constitution to track federal Amendment”). stated, Simply the Fourth interpretations of the Fourth Amend if in an adversary system, we believe Vilsack, ment.” v. Atwood 725 N.W.2d process adversarial before the United (Iowa 2006). 641, 650 “Cases interpreting Court is far more robust. constitution are persuasive federal when, Ochoa, especially That is true our of the state interpretation constitution into we venture state constitutional issues federal and because the state search-and- one has that no briefed.46 are similar.” Hos seizure clauses State v. 2006). kins, (Iowa N.W.2d we I believe went too far in We Ochoa. without longstanding precedent abandoned Because federal and state search- identical, admitting we were read are doing nearly so. We too and-seizure clauses history much into the text and the Iowa interpreting federal cases the federal Here, Ochoa, maintains, rather, opinion as in 46. the court’s is He that we decided self-generated. It is not based on matters the question in Ochoa and that Ochoa controls appellant appeal. has briefed Baldon's Appellant’s this case. Br. at 10-11. brief does not even issue. address consent interpre- points about should be in our Several Cline
provision
persuasive
are
However,
First,
provision.
remedy,
state
about
tation of the
case was
noted.
court
binding
are not
on this
cases
the Iowa
right.
say
such
We did not
Con-
the state
interpretation
our
regarding
that the
would invalidate
search
stitution
provision.
permits.
States Constitution
(Iowa
fact,
Carter,
applied
federal and Iowa
we
both
696 N.W.2d
State
2005) (citation
quotation
underlying
and internal
finding
search
precedent
omitted).
unconstitutional,
marks
stating,
contains
The Iowa Constitution also
I,
of article
language
Because
sec-
that is virtual-
and seizure clause
nearly
is
tion 8 of the Iowa Constitution
to the
Amendment.
ly identical
Fourth
Amendment,
to the Fourth
identical
Accordingly,
usually interpret
we
provisions
generally
two
are
deemed
I,
of article
section
scope
purpose
import,
scope,
pur-
be identical
to track with
of the Iowa Constitution
Therefore,
our
although
discus-
pose.
Fourth
interpretations of the
probable
will focus on the
sion of
cause
Amendment.
Amendment,
analysis
Fourth
of this
(Iowa
Jones,
142, 145
equally
defen-
applicable
issue
(citations
2003)
quotation
and internal
claim under the Iowa
dant’s
Constitu-
omitted).
marks
tion.
opinion,
Despite
length
of the court’s
(citation
quota-
at 281-82
and internal
Id.
any
not mention
of these recent
Ochoa did
omitted).
simply
marks
held
tion
Cline
Instead,
the follow-
statements.47
it made
courts,
of remedy,
that Iowa’s
as a matter
ing
gen-
“This
to date
assertion:
court has
not allow the use of evidence that
would
erally developed
body
unconstitutionally obtained.
had been
constitutional law in the search
cautiously.”
slowly
area
seizure
Second,
question
remedy,
even on the
Ochoa,
continued to
a note of deference.
we
sound
*50
overstating things
That is
a bit. Actual- Thus,
rule,
concerning
exclusionary
we
the
ly,
reading
careful
would reveal
a
Ochoa
said,
general
“In accordance with these
cited case
had di-
exactly one
where we
we
be consistent with
principles,
strive to
verged
interpretation
from federal
interpreta-
in our
federal constitutional law
interpretation
Amendment in
Fourth
our
Constitution,
jeal-
the Iowa
but we
tion of
Cline,
I,
8.
of article
section
See State v.
ously guard
right
duty
our
to differ in
(Iowa 2000), abrogated
on
N.W.2d
(citation
cases.” Id. at
appropriate
Turner,
by
v.
grounds
other
State
omitted).
quotation marks
and internal
2001).
(Iowa
n. 2
N.W.2d
Third,
prece-
deviating
from federal
Cline, this court declined to follow United
rule,
concerning
exclusionary
we
dent
Leon,
104 S.Ct.
that,
approach
according
an
to
followed
(1984),
recog-
L.Ed.2d 677
which
research,
addressing
most states
faith
good
exception
applica-
nized a
to the
had taken under their own state con-
rule. See 617 issue
exclusionary
tion of
n. 3.
at 285-93.
stitutions. See id. at 293
lan-
the reader
47. Ochoa cites a few
with similar
Ochoa would thus have
believe
cases
guage, but the last
from 1988. See
one is
that
"older cases” embraced such
Ochoa,
(citing
two clauses of the
Id.
bibliographical
sentence.”
lowed
historical dis-
the court
it fell
suggested (although
short
cussion of
the Fourth Amendment.
Constitution, Ochoa,
saying)
Iowa’s
that we are two divergent The concurrence offers going if we are provisions. But tutional deferring for not States reasons United we did analysis, value-driven as in engage in this area. Supreme jurisprudence Court Ochoa, out in one why in has status won my says point, colleague At one that the other? area but not the Fourth Amendment decisions dis- Court’s striking “a of stable consensus” play its elimination lack a result of Ochoa and As Later, interpretation by and are marked “incoherence.” to federal deference Amendment, my colleague now have two maintains that Court has we Fourth in steadily scope rules reduce “proceeded sets of search and seizure different has prose protections” and “a ten- If Ochoa or Baldón had been Iowa. protec- violating drug dency laws based to dilute the substantive cuted for ways. One have it both question, on notwithstand tions.” cannot the incidents (in the view of con- ing underlying fact that the search Either Court currence) officials, unpre- estab by being state inconsistent conducted in its or it is on consis- rulings, Fourth Amendment law would dictable lished United, Bach, 310 tent march to limit Fourth Amendment States applied. (8th Cir.2002) (“[Federal ruling one believes that rights F.3d —unless prosecution sup government sign is itself courts in a federal do favor states, press that is state offi incoherence. The concurrence evidence seized law, need not learn long violation of state so “Law enforcement officials cers in standards; they need only Fourth Amend two different complied ment.”). Thus, one, any suppress namely, motion to learn whatever standard is denied, been and the denial restrictive.” But what is Iowa would have most Ochoa, How upheld appeal. have been standard? We have three would cases— (Iowa Pals, 2011), ever, they prosecuted because were court, my Baldón. even col- our rather unclear work-in- and now I doubt ju would that this handful of progress leagues version search and seizure claim I, meaningful guidance. ap provide any under article section 8 decisions risprudence it plies. They make clear that what United approved States has is not in- Court’s United but good enough, explaining without what has terpretation Fourth Amendment good enough. would be See Davis v. comparatively been stable. — States, -, -, implies The concurrence that more re- against “arbitrary 180 L.Ed.2d 301 strictions exercise S.Ct. (2011) (“Decisions way their overruling government power” this Court’s are on from rare.”). Therefore, according precedents are court. to the Fourth Amendment doubt, concurrence, many get other war- And there are decisions from “when left gaps courts available to fill in rant.” If this is the court’s search and appellate generalized Unfortunately, jurisprudence, Iowa offi- seizure it is so Court. *54 there meaningless. Obviously, as to be own Clearly constitution. we Nor do. is when are some circumstances all members the issue whether arewe the final arbiters uphold to war- of this court would vote of meaning of that constitution. Clear- rantless search. ly we are. The is issue whether this sub- authority stantial should be exercised point
The concurrence also makes the the search and seizure area degree with a system that “a state in the federalist of self-imposed modesty and restraint. ‘laboratory1 democracy.” to a amounts the approach That was taken by this court we judgment But when substitute years until I ago. three think it was a government that of Iowa’s elected on when good one. searched, may not parolee be we are Rather, being democratic. we are over
turning people’s repres the decision of III. The Consent Issue. noteworthy entatives.51 It is that a num Be that as it may, open we did leave ber of states have chosen to parole limit questions several thing, Ochoa. For one regulation. searches a matter of law or the search by that case was conducted See, Coleman, 813, e.g., State v. 292 Kan. the police without the involvement of a 320, 257 P.3d (noting Ochoa, parole officer. at 262. N.W.2d “[w]hile Samson Court found that Cali And there particularized was no suspicion parole fornia allowed the police conditions of criminal activity violation. suspicionless to conduct searches parol Id. at 263. open addition to leaving ees, the Kansas Legislature and the Parole matters, those id. at we also did place pa Board elected to restrictions on whether parolee decide could be bound searches”); Benavidez, rolee State agreement consenting in advance to (N.M.Ct. N.M. 231 P.3d such a search. presents Id. This case all App.2010) (requiring suspicion reasonable However, my those circumstances. col- parolee for a warrantless based leagues choose address one of regulation, not the state constitu enforceability them —the of a consent. tion); Rowan, State v. 341 Wis.2d 854, 861 (rejecting a federаl My colleagues could have decided the challenge pa state constitutional to a question by applying consent the well-de- role authorizing suspicionless condition veloped body of federal constitutional law searches that was on a imposed based starting with Schneckloth v. Bustamonte. court’s pursu individualized determination See 412 U.S. 93 S.Ct. 36 L.Ed.2d law). ant to Wisconsin (1973); Samson, see also 547 U.S. at is not issue whether we have the 852 n. 2199 n. S.Ct. authority independently interpret our (leaving question L.Ed.2d 259 n. 3 386-87, (1932) (Brandéis, 51. The concurrence’s invocation of Justice L.Ed. J., added). phrase dissenting) prob- is (emphasis Brandeis's famous a bad fit. When phrase, experiments performed Justice Brandéis used he was lem lab dissenting colleagues’ judiciary from his decision that the citizens have not chosen out, they strike down an Oklahoma law on And constitu- them. if do not work it is wrote, grounds. pull tional He "It plug is one of difficult to on them. This does happy system judges incidents of federal not mean that Iowa should hesitate single courageous may, duty uphold their its follow sworn the Iowa citizens if choose, Constitution, laboratory; try deviating serve as a they novel but should not be experiments precedent simply social and economic risk without from country.” to the promote rest New State Ice Co. what concurrence calls Liebmann, 52 S.Ct. "vertical federalism." "cross-fertilization” or *55 re- undecided). of Corrections Department them to The Iowa might have led This parole agree- a sign each inmate to quires Unfortunately, rather same the result. being paroled. Iowa Admin. ment before Schneck- well-established than follow the 201-45.1(2) (“The parolee may not r. Code road, to colleagues have decided my loth prior execu- parole released on to the be the Iowa path own under bushwhack their is un- parole agreement.”). It tion Thus, initially they while Constitution. that officer reviewed disputed parole the Schneckloth, they away veer then discuss with him before parole agreement Baldon’s “practical” approach a opt it from and encouraging it. be signed he We should ap- law.” this on Under based “contract agreements, not parole the use of these be- is deemed invalid the consent proach, where a discouraging them. Contracts “bargaining has no prisoner the cause agrees as Baldón convicted felon such are only choices power”: prisoner’s The rules and writing expectations to certain subject to and be prison to remain in the important part rehabilitative are to be agree to suspicionless searches process. as a con- subject suspicionless searches short, contract-based majority’s the leaving prison. dition of It more analysis is backward: would be say it good you if syllogism This sounds to invalidate the contract if appropriate parole to extract apart it falls on further state used benefits quickly, but I think prisoner did not oth- a concession that waiving light a analysis. prisoner is If token, give. By same erwise entering not have that he or did before she I find it easier majority, like the Samson be more of into the should agreement, uphold parolee a warrantless search of a the waiver. a reason to honor parole is more probationer than a because no con- privilege. Parole “There is is imprisonment probation than is to akin to right condi- inherent to be stitutional or imprisonment parolee and because a prison to the tionally prior from released from See 547 coming prison. valid sentence.” State expiration of a My L.Ed.2d at 258. 126 S.Ct. (Iowa Cronkhite, track colleagues’ reasoning wrong is on 2000). Thus, bargain- matter fair as a as well. here law, I do understand ing and not contract right be free argue One could why upon it is for the state to insist unfair warrantless, suspicionless searches from ability searches the continued conduct outside world is so and seizures Indeed, by the bargain. part be in ad- important that it cannot waived virtually all the conditions majority’s logic, times, vance, by prisoners. even At unen- parole agreement should be approach, saying, at that majority hints forceable, things the these are all because con- mandatory parole, “As a term of such (e.g., prison do while in defendant cannot justify- would have the effect of sent also I re- change “I residence unless shall not parole the search the basis of sta- ing approval,” “I shall not associate permitted ceive tus. This is not under Ochoa.” I, etc.).52 giving users,” majority also refers article drug valid, might parolee majority more or concedes in tions be because less reading them, of its footnote that this is correct agreed to because State ordered but words, agreement opinion. parole In other I they “reasonable.” While them are en- because of it is is a waste of time none helpful, they do not think such caveats are However, my colleagues leave forceable. predictability area. afford the needed open condi- possibility other self, possessions, amor- “integrity,” 8 its a somewhat his and his residence *56 section a officer, the concept suggest that seems to phous parole majority and a of courts agree I would not right is not waivable. give provisions.”). effect to such view, that at least it would be a but The consent to search the standard the logical way to defend result reached agreement parole IDOC is broad and au majority in case. majority’s the this The thorizes searches ... “without reasonable rejection parole agreements wholesale by any cause” and “law enforcement offi law, misapplication contract howev- and states, cer.” In some permission this has er, leave me baffled. judicially been narrowed. See State v. ques Most states the to have confronted Heaton, (Minn. parole have the upheld validity tion Ct.App.2012) (holding parole agreement the agreements parolee which consents provision that offender will “[t]he submit in advance to warrantless searches. See any to an time unannounced visit and/or State, 671, McFerrin v. Ark. 42 S.W.3d the person, search of offender’s vehicle or (“[W]e 529, (2001) 534-35 have that a held premises by agent/designee” the justifies a is parolee’s advance consent valid because long search suspicion so reasonable ex parolee custody remains the the ists); Hughes, Commonwealth v. 575 Pa. is institution from which he re penal 447, (2003) 893, 836 A.2d (finding that ”); Devore, .... v. Idaho leased pursuant agreement a search to a parole is (Idaho 2 P.3d Ct.App.2000) “(1) permissible parole when officer (“The grounds’ requirement ‘reasonable suspicion had reasonable to believe that by probation for warrantless searches or violation; parolee parole committed a parole apply officers does when (2) the reasonably and search was related subject of the has into a entered duty officer”); parole to the State v. in probation parole agreement or that (Utah 1983) 1254, 1260 Velasquez, 672 P.2d cludes consent warrantless (holding notwithstanding agree searches.”); Wilson, v. People 228 Ill.2d ment, state still must reasonable 319 Ill.Dec. N.E.2d grounds parol whether a investigating agreement (upholding an where the parole ee has violated the terms of or in advance parolee consents to warrantless State, crime); committed a Pena searches); v. Bunting, Sullivan 133 Ohio (Wyo.1990) (adopting P.2d (per St.3d 975 N.E.2d approach). Utah’s curiam) (upholding parol the search of a here, approach If that followed were prior ee’s email based on his consent to search would still be Baldón was upheld. searches); warrantless see also Roman parole by the terms of violating staying his State, (Alaska 570 P.2d Motel, known at the Traveler hotbed of 1977) on the (“Depending nature weapons Yet drug and violations. the ma- involved, crime a condition of release sweeping does not jority’s approach allow granting right authorities to search outcome, Although for this either. premises persons and reasonable times law, purports contract it majority apply could stand muster under both the Alaska when a Constitutions.”); disregards tenet that contract E. William unconscionable, Seizures, may simply Ringel, the court Arrests Searches (2012) (“In any application “limit the unconsciona- § 17:8 most Confessions any as to [pa ble term avoid unconscionable jurisdictions, one of conditions in (Second) agreements Restatement of Con- parolee role] is that or result.” probationer § consents to the search him- at 107 tracts threats, coercion, fear, pressure, undue will dis- I majority’s approach, Yet voluntary”). that Pals’s consent to inmates courage granting on the voluntariness of court reversed need officials deserve it. Corrections who consent, variety pro- emphasizing can detect and they to be confident circumstances, fact including the cedural rule rais- majority’s deter recidivism. given had not been the individual deterring detecting es the costs to con- that he could refuse *57 specific advice the State if it releases by telling recidivism Pals, N.W.2d at 782-83. dealer, able sent. may it not be drug a convicted if he check on that dealer parole to do a hardly pro- can fault the Here the court drug motel that is a stay at a chooses given which consent was cedures under —a the residence being at haven instead with Bal- agreement was reviewed written supposed he is to be.53 where it. So it focuses on signed before he dón bargaining power,” be- Also, “disproportionate other parole agreements —like sign the prisoner if the does not advantage pre- cause agreements —have in he or she has to remain by agreement, majority’s approach, dictability. Thus, apply purports the court contrast, legal prison. into turns law enforcement Pals, unconscionability analysis from an derived my In this case guesswork. my But if we consider col- Iowa contract law. have made it clear that colleagues reasoning, it would seem to invali- leagues’ con- the established federal will not follow many plea bargains. involuntary when a consent to date as standards for stitutional “dispro- have the same Doesn’t the State voluntary. they But have failed search is when it has bargaining power” theory portionate a coherent of volun- to articulate and offers caught a criminal red-handed it.54 replace tariness to many opportunity him or her the to avoid en- a brief and amicable Pals involved through plea bargain? years prison in and an police between a officer counter I (although I could understand Again, over for pulled whom he had individual with) that the the notion majority disagree Both the would having dog large. suspicionless from right to be free appeals on the court of and the dissent motel, home, or car is so searches of a that the consent to search agreed it cannot be waived ad- voluntarily important State v. given. vehicle was Pals, 09-0064, Arguably, Ochoa prisoner. 2010 vance No. (Iowa straight- A such a result. Ct.App. *5 Feb. foreshadowed WL 2010) analysis might also that “the forward Schneckloth (majority opinion) (stating majority’s conclusion. But the support leave no doubt circumstances as a whole into con- majority’s ill-conceived venture voluntary”); id. at *8 that his consent was (“I law, fear, J., will lead to more ... tract I (Doyle, dissenting) agree uncertainty consequences undesirable for to search request Wubben’s consent areas of criminal law. completely any devoid of other the truck was meaningful my colleagues majority 53. As note in their opinion, very point this has been made matching] analysis” "simply our instead of late William William J. Professor Stuntz. against prece- constitutional cases Stuntz, Power, Implicit Bargains, Government view, my respectfully disagree. In I dents.” Amendment, 44 Rev. and the Fourth Stan. L. existing, well- to work within an it is harder authority, general- developed as courts line of do, ly branch off on one’s own on than to pats 54. The concurrence this court on its back doing "[djeveloping ad hoc basis. the "hard work” of authority on the Specifics of Samson This Case. court IV. The (which appeals decision Ochoa had Even if one were inclined to invalidate uphold relied parole Samson parolees, some warrantless searches search). Given the defendant’s failure to be the to do so. Baldon’s would not case a separate advance state constitutional ar- au- present officer was both gument against enforceability and supervised thorized search. consent, and binding status as a Samson’s Moreover, at Bal- the time search of law, interpretation of federal constitutional occurred, already don’s car it was known presumably the State believed that it did of his parole agree- he was violation separate not need to make a “reasonable- Indeed, staying ment. he was at a motel “special argument ness” needs” below. (that minors) school-age with a prohibited short, noted, girl. already I Now decision today’s Ochoa *58 presents additional justifica- this case two changed decisions have landscape. the parole presence of tions for a search —the being Baldón is granted relief under a officer rea- parole and the existence of separate state argument he suspicion or least a parole sonable clear never made Yet we deny below. n Knights, violation. See States v. United State the opportunity go back to the 587, 593, 122 S.Ct. try district court and to defend the (2001) (holding L.Ed.2d unani- search under our remade case law. mously pro- that a search of a warrantless Why? apartment was supported bationer’s that It should be noted Baldón himself suspicion and reasonable authorized object does not considering whether probation condition his was reasonable justified was the car based meaning within the of the Fourth Amend- presence on parole officer or the ment); Wisconsin, Griffin suspicion. existence individualized To 107 S.Ct. 97 L.Ed.2d contrary, he briefed those issues his (holding special opening logically, brief. He and I believe system jus- needs of probation Wisconsin’s correctly, assumed those issues were still probationer tified a warrantless search of a in play. by probation to a Wis- pursuant officers regulation probation
consin that allowed reasons, the foregoing For I respectfully grounds). searches based reasonable dissent. Unfortunately, majority plays a bit gotcha, finding has WATERMAN, J., joins dissent. any
waived basis other than consent upholding search. This strikes me as
unfair to State. this case was When court,
heard in district we had not sup-
decided motion to Ochoa. Baldon’s
press agreement argued
unenforceable under both Constitutions, Iowa
States and but Baldón urge
did a separate interpretation
the search and clause in the Iowa seizure surprisingly,
Constitution. Not the trial
court to suppress denied Baldon’s motion notes to revive the “act of the effort at 36 L.Ed.2d at S.Ct. theory traced to a 1967 article. can be 874). 10.10(b), § The article LaFave “ that ‘the recognition LaFave’s location to advised states and conditions’ of even brief detention to a search and right “make the conduct may finding be such as to foreclose pa- express ... an condition seizure voluntary Id. consent” is also instructive. be, may as case probation, role or (footnote omitted) (quoting at 90 knowingly accepts. which the defendant (6th v. Worley, States 193 F.3d rights may be waived and Constitutional Cir.1999)). seemingly Even innocuous cir- Fourth if a should hold that the court in an stop cumstances such as a brief in- applicable is in these Amendment airport stances, rights be waived in could this manner.” it easy implicit “make threats Holtzoff, subtle coercion to exert tremendous The Pow- (quoting Id. Alexander acquiesce pressure on an individual er and Parole Probation Officers Seize, the officer’s wishes. such situation Search and 31 Fed. Probation (1967)). indicates, easy misinterpret acquies- it would be As our own research consent; con- many to an as observed courts cence officer’s demands LaFave grace” hardly any longer try to theory upon It useful deal 3. The "act built is argument "privilege.” is a problem in terms of whether the with this 10.10(b), § LaFave at 525-26. The United liberty "right” "privi- parolee's is a or a rejected theory two name, liberty lege.” By whatever is years after Court did. See Iowa within and must be valuable seen Brewer, Morrissey v. protection Amendment. of the Fourteenth S.Ct. 33 L.Ed.2d Id. The Court stated: purported with waivers of Those benefits government fronted these permit- approved protections have ted compelled provide.... but not Un- Id. them. at 529-30. problems constitutional conditions ... do government not arise if is obligated to However, disagrees LaFave these benefit.”). Yet, provide analogy, A holdings. proper applica- Id. at 580-31.