Lead Opinion
After making a routine traffic stop for an expired license plate,, a police officer smelled marijuana and confiscated one marijuana blunt from the motorist. The officer ordered the motorist from the vehicle and arrested him for possession of marijuana. After the motorist and his passenger were placed in a squad car, a search of the passenger compartment at the scene of the arrest revealed a small portable locked safe. A police officer opened the safe without obtaining a search warrant and discovered additional marijuana, drug paraphernalia, and a gun. The motorist was charged with possession of marijuana with intent to deliver, failure to affix a drug tax stamp, and knowingly-transporting a revolver in a vehicle. The district court denied the motorist’s motion to suppress the contents of the locked container under the Federal and State Constitutions and convicted the motorist of the charges. Upon our review, we conclude the warrantless search of the container incident to the motorist’s arrest violated his rights under article I, section 8 of the Iowa Constitution.
I. Background Facts and Proceedings.
On December 18, 2012, while on second shift patrol, a Davenport police officer observed a van moving on the roadway with expired Iowa license plates. The officer initiated a traffic stop. As he approached the van, the officer noticed a very strong odor of burnt marijuana emanating from the vehicle. The driver of the van identified himself as Jesse Gaskins, and a passenger in the front seat of the vehicle could not produce identification.
The officer asked Gaskins about the odor of burnt marijuana. Gaskins denied there was any marijuana in the vehicle. Suspecting Gaskins’s answer was untrue, the officer replied that a drug detection dog was on duty that night and that if it were brought to the scene it would detect that the vehicle did contain marijuana. Upon hearing about the prospect of summoning a drug dog, Gaskins said, “Okay, I’ll be honest with you, I got a blunt.” He retrieved a partially-smoked marijuana blunt from the van’s ashtray and gave it to the officer. Because there were two van occupants, the officer requested a second police unit be dispatched to the scene. When a second officer arrived, the officers directed Gaskins and his passenger to exit the van. The officer who initially made the stop immediately arrested Gaskins and secured him inside a police car with his passenger.
Based on his interactions with Gaskins— particularly the fact that Gaskins had initially lied about whether there was marijuana in the vehicle — the arresting officer believed the vehicle contained more marijuana than the blunt Gaskins had retrieved. He therefore directed the second officer to conduct a search of the van to look for additional drugs, paraphernalia, drug packaging materials, weapons, or “[ajnything that was illegal.”
The second officer began conducting the search of the van and discovered a small black portable safe between the driver’s seat and the rear passenger seats. The safe was locked. The officer found a key to the safe’s lock on the keyring in the van’s ignition and used it to open the safe. He did not think about getting a warrant before opening the safe, and later testified he considered it the same as if he had found a zipped duffel bag or any other closed container while searching the van.
On April 3, 2013, the Státe charged Gas-kins by trial information with three counts: possessing marijuana with intent to deliver, knowingly transporting a revolver in a vehicle, and failing to affix a drug tax stamp.
The State resisted the motion, asserting the warrantless search was a permissible search incident to arrest because it was reasonable to believe the van’s passenger compartment contained evidence of the offense — marijuana possession — for which Gaskins was arrested. See Arizona v. Gant,
At the suppression hearing, the State contended the locked safe was no different from a duffel bag, a backpack, or any other kind of container encountered during the search of a vehicle. Further, the State asserted the fact the key was on Gaskins’s keyring indicated he had access to the safe. Gaskins responded that the locked safe was quite different from duffel bags or backpacks because it was locked, not merely closed, clearly manifesting his expectation of privacy in its contents. The district court denied Gaskins’s motion, concluding the search was a valid search incident to arrest. The district court did not decide whether any other exceptions to the warrant requirement supported the search because the State expressly argued only that the search was valid because it was incident to arrest.
II.The Parties’ Positions.
Gaskins asserts the warrantless search of his locked safe violated his constitutional rights under the Fourth Amendment to the United States Constitution and under article I, section 8 of the Iowa Constitution. In particular, Gaskins contends the search was not justified by officer safety concerns or by a danger that the safe or its contents could be destroyed under the circumstances presented here because the van’s occupants had been removed from the vehicle and secured in a squad car.
Alternatively, Gaskins contends trial counsel was ineffective. Specifically, he asserts trial counsel breached an essential duty by not discovering criticism and debate about the soundness of the Supreme Court’s holdings in Gant and New York v. Belton,
The State asserts that existing federal and state court decisions provide sufficient grounds to affirm the district court’s conclusion that the warrantless search in this case was a valid search incident to arrest.
III. Scope of Review.
“Because this case concerns the constitutional right to be free from unreasonable searches and seizures, our review of the district court’s suppression ruling is de novo.” State v. Watts,
We ordinarily consider ineffective-assistance сlaims in postconviction-re-lief proceedings. Id. at 785. We only resolve them on direct appeal if the record is adequate to address the claim. Id. If the record is adequate, we review ineffective-assistance claims de novo. State v. Halverson,
IV. Analysis.
We conclude the search in this case was not a valid search incident to arrest. Accordingly, we do not reach Gaskins’s alternative claim that he received ineffective assistance of counsel.
The State asserts Gaskins’s mere citation to article I, section 8 in the motion did not preserve error based on that provision of the Iowa Constitution because the district court did not rule on it. See Meier v. Senecaut,
When there are parallel constitutional provisions in the federal and state constitutions and a party does not indicate the specific constitutional basis, we regard both federal and state constitutional claims as preserved.... Even in these cases in which no substantive distinction had been made between state and federal constitutional provisions, we reserve the right to apply the principles differently under the state constitution compared to its federal counterpart.
King v. State,
B. Constitutional Provisions and Interpretive Authority. Article I, section 8 of the Iowa Constitution provides:
The right of the people to be sécure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
Iowa Const. art. I, § 8. This provision “is, of course, nearly identical to the Fourth Amendment to the United States Constitution .... [U]nlike accepted versions of the Fourth Amendment, article I, section 8 utilizes a semicolon between the reasonableness clause and the warrant clause.” State v. Short,
We do not revisit that debate here. Even “in ... cases in which no substantive distinction [appears] between state and federal constitutional provisions, we reserve the right to apply the principles differently under the state constitution compared to its federal counterpart.” King,
Of course, “our independent authority to construe the Iowa Constitution does not mean that we generally refuse to follow the United States Supreme Court decisions.” Short,
[Although th[e Supreme] Court may be a polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be so fixed on that star that we risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in.front of us as well as above us.
State v. Hempele,
C. The Search in This Case. Police searched Gaskins’s vehicle and opened the safe without a warrant.- “A warrantless search is presumed unreasonable” unless an exception applies. State v. Moriarty,
The seminal decision exploring the SITA exception to the warrant requirement is Chimel v. California,
There is ample justification ... for a search of the arrestee’s person and the area “within his immediate control”'— construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be madе only under the authority of a search warrant.
Id. at 763,
In Belton, the Supreme Court confronted the question of the extent to which the Chimel principles should apply in adjudicating a Fourth Amendment challenge to the search of an automobile conducted incident to the arrest of an occupant. See Belton,
The Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460,
We adopted Belton in 1981. State v. Sanders,
Some members of the Supreme Court became wary of Belton’s breadth. In 2004, Justice Sandra Day O’Connor expressed concern that, after Belton, “lower court decisions seem[ed] ... to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception [to the warrant requirement].” Thornton v. United States,
Critical commentary on Belton culminated at the Supreme Court in 2009. Gant,
*10 The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely within the area into which an arrestee might reach, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.
Id. at 350-51,
Gant limited, but did not completely disavow, Belton. See id. at 345-46,
Although the Supreme Court heard numerous calls to revisit Belton, it did not do so until the Gant decision in 2009. See Vance,
In contrast to the group of states that adopted and followed Belton in interpreting their state constitutions, several others have departed from Belton, focusing on the specific and narrow Chimel considerations underpinning the SITA exception to the warrant requirement. For example, in Eckel, the New Jersey Supreme Court stated:
Because the [SITA] exception to the warrant requirement was lim[it]ed for two specific purposes — the protection of the poliсe and the preservation of evidence — and because neither purpose can be advanced by searching the vehicle of a person who effectively is incapacitated, we hold that such a search is incompatible with ... the New Jersey Constitution. To the extent [Belton ] has concluded otherwise in [interpreting] the Federal Constitution, we respectfully part company with the United States Supreme Court.
Eckel,
Similarly, the Washington Supreme Court has held that a warrantless search of a locked container found in an automobile incident to the arrest of an occupant is only permissible under that state’s constitution to “preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.” Valdez, 224
The New Hampshire Supreme Court has also departed from Belton in interpreting that state’s constitution. See Sterndale,
In the instant case, the defendant was secured, in handcuffs, in the rear of a police cruiser, with two Nashua Police officers on the scene.... [T]he legitimate law-enforcement concerns underlying the [SITA] exception plainly were not present in this case. Since the search was made only after the defendant was securely in custody and unable to gain access to the vehicle, it was not justifiable as a search incident to arrest.
Id.
Several other courts have focused on the Chimel considerations in declining to follow Belton when interpreting their states’ constitutions. See, e.g., Hernandez,
We now agree with the approach taken by the courts that have rejected the Belton rule that authorized warrantless searches of containers without regard to the Chimel considerations of officer safety and protecting evidence. “When lines need tо be drawn in creating rules, they should be drawn thoughtfully along the logical contours of the rationales giving rise to the rules, and not as artificial lines
Ostensibly, Gant is a limitation on Belton. See Vance,
We approve Gant’s “reaching distance” rationale as an appropriate limitation on the scope of searches incident to arrest under article I, section 8 of the Iowa Constitution because that limitation is faithful to the underlying justifications for warrantless searches incident to arrest. However, we decline to adopt Gant’s alternative evidence-gathering rationale for warrantless searches incident to arrest under the Iowa Constitution because it would permit the SITA exception to swallow completely the fundamental textual rule in article I, section 8 that searches and seizures should be supported by a warrant. In other words, “use of a [SITA] rationale to sanction a warrantless search that has nothing to do with its underlying justification — preventing the arrestee from gaining access to weapons or evidence — is an anomaly.” Rowell,
In declining to adopt Gant’s broad evidence-gathering purpose as a rationale for warrantless searches of automobiles and their contents incident to arrest under article I, section 8 of the Iowa Constitution, we note the historical precedent upon which that rationale relies was specifically rejected in Chimel. See Chimel, 395 U.S. at 768,
Indeed, the important distinction between the purpose of preserving evidence and the purpose of collecting evidence in SITA analysis was evident even before Chimel as the Supreme Court demonstrated a desire to constrain the scope of the SITA exception under the Fourth Amendment. Preston v. United States,
Applying these principles to the facts of this case, we conclude the search of Gaskins’s locked safe was not a valid SITA under article I, section 8. Two police officers were on the scene. Although the van had two occupants, both Gaskins and his passenger were secured in a squad car before the search of the vehicle and the safe were undertaken. The officer who performed the search testified there was no way Gaskins could have retrieved anything from the locked safe while in custody in the squad car. See Pittman,
Although we reject Gant’s evidence-gathering rationale for warrantless searches incident to arrest under the Iowa Constitution, we of course do not reject the SITA exception entirely. Our decision today does not preclude a warrantless SITA under circumstances in which the security of an arresting officer is implicated, see Tolsdorf,
We are sensitive to the State’s policy concerns, but we conclude they do not justify the warrantless search incident to arrest in this case. For example, the State contends obtaining a warrant in the field is not an instantaneous proposition, especially when — as in this case — a traffic stop occurs at a late hour, making it less convenient to approach a magistrate and request a warrant immediately. We acknowledge the officers likely would not have obtained a search warrant instantaneously, had they requested one. Yet, any inconvenience resulting from the need to request and obtain a search warrant at the late hour does not defeat the protection offered by article I, section 8 because
constitutional protections do not simply fade away with the setting of the sun. The prohibition against unreasonable searches safeguards people ... at all times. We cannot conclude that the validity of a warrantless search could turn solely on the time of day that search was conducted.
State v. Elison,
Nonetheless, the State continues, a child could have gained access to the drugs and the. gun in Gaskins’s vehicle had it been left unattended on a Davenport street while officers obtained a warrant. Further, the State asserts a warrant requirement in this instance puts a strain on police resources, because one officer would have to stay with the vehicle while another traveled to get the magistrate’s approval. However, these concerns are premised on the notion the vehicle would remain on the street. Because it was impounded, both of these dangers are more imaginary than real.
Lastly, the State contends, the public sees no benefit in exchanging an immedi
[T]he Constitution [is not] a public enemy whom judges are charged to disarm whenever possible. It is the protector of the people, placed on guard by them to save the rights of the people against injury.... To hold that attack upon it is for the public good is to commend the soldier for tearing down the rampart which enables him to sleep in safety.
Hunter v. Colfax Consol. Coal Co.,
In sum, we overrule Sanders because we conclude Belton no longer sets forth the proper scope of the SITA exception under the Iowa Constitution. Instead, the SITA exception to the warrant requirement under article I, section 8 is tethered to its original underlying dual justifications. When we apply those justifications in this case, we conclude the search of Gaskins’s van and safe was not a valid warrantless SITA under the Iowa Constitution because at the time the police officer conducted it there was no danger to the officer or likelihood that Gaskins could access the vehicle to obtain a weapon or destroy evidence. Of course, our holding that the warrantless search of the van was not justified under article I, section 8 as a SITA does not mean the van was immune from search; our holding “is instead that a warrant is generally required before such a search.” Riley v. California, — U.S. -, -,
V. Conclusion.
“The word ‘automobile’ is not a talisman in whose presence the [constitutional protection against warrantless searches and seizures] fades away and disappears.” Coolidge v. New Hampshire,
REVERSED AND REMANDED.
Notes
. The searching officer testified he only opened the safe because he found the key. If he had not found the key, he stated he would have informed the arresting officer and "dis
. Gaskins’s passenger — a minor — was re- ' leased to his mother and was not charged as a consequence of the incident.
. The officers’ testimony and the county attorney's legal argument presented at the suppression hearing confirm the focus on the search-incident-to-arrest exception to the warrant requirement. The arresting officer testified about the .nature of the van’s passenger compartment, stating the vehicle had no separate trunk compartment. Further, the searching officer testified the safe was possibly within the reach of anyone sitting in the driver’s seat. The scope of the passenger compartment and the question whether an object was within- reaching distance of an arrestee áre key factors in analyzing challenges to warrantless searches made incident to arrest. See Gant,
. The State urges' adoption of "neutral interpretive principles” or "divergence criteria” for deciding when this court will rely on independent state grounds for its decisions. We recently addressed and rejected the notion of such criteria in Short, and do so again here. See Short,
. We are mindful that our recent article I, section 8 decisions have received criticism because they diverge from the Supreme Court’s interpretation of the Fourth Amendment. See, e.g., Short,
Concurrence Opinion
(concurring specially).
I join the court’s opinion in this very sensitive area of state constitutional law involving a traffic stop and a subsequent search.
I. Arguments on the Merits of Search Incident to Arrest.
The court’s opinion addresses the search-incident-to-arrest issue under article I, section 8 of the Iowa Constitution with thoroughness and precision. It is a model of scholarship and clear writing. And, it is wholly loyal to basic principles of search and seizure law under article I, section 8 of the Iowa Constitution. I write separately on the search-incident-to-arrest issue only to make a few points.
To the extent the dissent relies on “inconvenience,” there is, of course, a degree of inconvenience in requiring a warrant in this case. That much must be conceded. In fact, the warrant requirements of arti-ele I, section 8 of the Iowa Constitution generally are inconvenient provisions. If inconvenience were enough to defeat the assertion of constitutional rights, however, the warrant requirement would be meaningless, as would all the other inconvenient provisions in article I of the Iowa Constitution, such as the right to speedy trial, the right to be informed of the accusation, the right to confront witnesses, the right to compulsory process, and the right to have the assistance of counsel. Iowa Const. art. I, § 10.
The very purpose of constitutional provisions, however, is to prevent current practical considerations from eviscerating “inalienable” constitutional rights. Id. art. I, § 1. History does, of course, have models in which current practical considerations proceed without inconvenient individual protections. “[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard” of constitutional search and seizure requirements. Mincey v. Arizona,
In any event, even on a pragmatic level, while it may be somewhat inconvenient, the notion that obtaining a warrant is burdensome is no longer sustainable. At the time Carroll v. United States was decided, it might have taken several hours or even days to obtain a warrant.
The dissent stresses the need for a bright-line rule in this case. The need for “bright-lines” is a good slogan, but the question of a bright-line poses a number of difficult problems. At the outset, some problems, including those of constitutional dimension, may not be amenable to a bright-line approach. For instance, the question of probable cause must be based on the totality of the circumstances and all legitimate inferences. A set of bright-line rules would be of no help and would do some harm. Similarly, in a civil context, the Restatement (Third) of Torts rejects bright-line rules in negligence cases with respect to duty and scope of duty because of the tremendous factual variation in negligence cases that defy rational categorization. See Thompson v. Kaczinski,
In addition, even if the subject matter appears amenable to a bright-line rule, the rule must be properly constructed and placed. A bright-line rule that tramples on constitutional rights may be crystal clear and plainly unlawful. In constitutional law, crafting an appropriate bright-line rule and putting it in the right place is a delicate matter. While a bright-line rule may be promoted on grounds of clarity, one must be alert to the possibility that the placement of the bright-line — where you draw the line, to use a colloquial phrase — may effectuate a significant and even dramatic shift in substantive law.
The Supreme Court’s effort to establish bright-line rules in the area of search-incident-torarrest cases illustrates the difficulty. The Supreme Court attempted to draw and place a bright-line in Marron v. United States,
In any event, this case has a rule that strikes me as pretty bright: namely, that when a locked container in an automobile is plainly out of the reach of an arrested person, who is handcuffed and sitting in the back of a police car, and the person’s confederates are similarly removed from the proximity of the locked container, the police may not conduct a search incident to arrest without a warrant.
Importantly, the rule in this case is drawn in the right place. The placement of the line in the court’s opinion is required by the principle of the proportionality rule, which is a central component of search and seizure law under article I, section 8. The theory of the search-incident-to-arrest exception to the warrant requirement, which is not challenged in this case, generally allows police to search an arrested person and areas within the arrested person’s reach in order to prevent the arrestee from seizing a weapon or destroying evidence. See State v. McGrane,
While the dissent claims to advocate bright-line rules, such advocacy is, to some extent, inconsistent with its strong preference for federal authority, which seems to be implicit in the neutral criteria argument it advances. For instance, in Schneekloth v. Bustamonte, the United States Supreme Court rejected a bright-line requirement of knowing consent in favor of a “blender” method of constitutional adjudication in which all the circumstances present are thrown into a blender like fruits and vegetables, the blender is turned on high, and judges rule based upon a judicial taste test.
Another issue in the case is officer safety. The United States Supreme Court has traditionally been extremely attentive to issues of officer safety. The high court has recognized the lack-of-safety concern in cases like this one. See, e.g., Chimel,
II. Analysis of Neutral Criteria in State Constitutional Adjudication.
A. Current Status of Iowa Law. In State v. Ochoa, we stated that in considering search and seizure issues under article I, section 8 of the Iowa Constitution, “The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision.”
In State v. Short, we again discussed at length the rationale for independent state constitutional adjudication under article I, section 8.
In Short, we recognized that historically the development of independent state constitutional law has not been universally celebrated and has occasionally drawn “bitter, accusatorial dissent[s].” Id. at 486 (internal quotation marks omitted). Citing
Our approach to independent state constitutional law is similar to that adopted in a. number of jurisdictions. See, e.g., Gerawan Farming, Inc. v. Lyons,
As noted by Robert Williams, calls for neutral criteria rest on a faulty premise. Robert F. Williams, The Law of American State Constitutions 148 (2009) [hereinafter Williams]. The premise is that the constitutional decisions of the United States Supreme Court are somehow presumptively correct and should generally be adopted by state supreme courts. See id. This premise is nowhere supported in the history or text of the Iowa or Federal Constitutions or in the structure of the federal system. As noted by Justice Stevens, the presumption of correctness of United States Supreme Court decisions with respect to state constitutional issuеs arises from a “misplaced sense of duty.” Delaware v. Van Arsdall,
The dissent does not believe the approach in Ochoa, Baldón, and Short is entitled to stare decisis, nor does it think the approach in this ease is entitled to stare decisis.
B. Criteria in State Constitutional Interpretations. A number of state supreme courts have announced they may use certain criteria in evaluating claims under state constitutional law. The three leading cases describing criteria are State v. Hunt,
The criteria in these states vary somewhat but have some things in common. In particular, the criteria usually include constitutional text, constitutional history, and precedents in other state courts, as among the factors that may be considered in inde
State supreme courts that have ventured into announcing criteria have often subsequently faced battles over what the criteria mean. See Williams at 150-62 (citing examples of state experiences with criteria approaches). A critical question is whether the criteria are hard substantive criteria or soft advocacy criteria. Hard substantive criteria are criteria designed to erect a barrier to independent state constitutional adjudication and give rise to a presumption that the federal approach should be adopted absent a demonstration by the proponent of a divergent state constitutional rule that most or all of the criteria have been met. In other words, state constitutional law independent of federal precedent is governed by an “ironclad checklist,” and when the United States Supreme Court changes course, the state court must follow unless the requirements of a thread-the-needle checklist have been met. See People v. Scott,
Soft advocacy criteria, however, are merely designed to improve the quality of advocacy by encouraging the parties to consider constitutional questions from a number of different points of view. Many state courts and state supreme court justices have bemoaned the lack of thorough briefing of state constitutional issues and have sought to use criteria to enhance the quality of advocacy. See, e.g., State v. Morales,
The battle over whether criteria should be considered hard substantive criteria or soft advocacy criteria may be seen in two of the leading criteria states, New Jersey and Washington. In New Jersey, for instance, the meaning of the Hunt factors was a matter of contest from the very beginning. Justice Handler and Justice Pashman battled from the get-go over whether the criteria created a presumption of the correctness of federal law. Hunt,
In the end, however, many of the states have clearly embraced a soft advocacy approach to their criteria. An indication of the dominance towards this approach is the increasing reference to the criteria as “nonexclusive.” See, e.g., Gunwall,
Further, the Pennsylvania Supreme Court has declared the Edmunds factors are not a mandate that a decision recognizing heightened protections utilize the criteria but instead are intended as a guide for litigants. Commonwealth v. Shaw,
Hard or soft, other states have used criteria so open-endedly they approach normal rules of constitutional adjudication. For example, in State v. McMurray, a case cited by the dissent, the Minnesota Supreme Court noted that under circumstances when the state and federal constitutions use substantially the same language, additional state protection may be afforded,
(1) when the United States Supreme Court has made a sharp or radical departure from its previous decisions and we discern no persuasive reason to follow such a departure; (2) when the Court has retrenched on a Bill of Rights issue; or (3) when the Court precedent does not adequately protect our citizens’ basic rights and liberties.
A number of cases under article I, section 10 of the Minnesota Constitution, which is a search and seizure provision parallel to article I, section 8 of the Iowa Constitution, demonstrate the flexibility. For example, in State v. Carter, the Minnesota Supreme Court held that a sniff by a drug detection dog outside a storage unit was a “search,” contrary to prevailing federal precedent.
Indeed, the notion that criteria are usually only suggestions for advocacy and not designed as barriers to independent state constitutional law can be demonstrated in the context of automobile searches and seizures. The dissent declares that if we adopted a neutral-criteria approach, the result would be different in this case. However, that assumes we adopt a hard substantive approach or ironclad-checklist
The above experience demonstrates two things. First, in most states, criteria have not served as a barrier to independent state constitutional adjudication as advocated by the dissent. Second, a significant downside to criteria is that they generate satellite litigation over their substance and proper application. See Williams at 151— 52 (noting in criteria states, the criteria themselves become the focus of litigation
C. The State’s Neutral Criteria. While we have rejected the criteria approach for state constitutional adjudication, the State’s neutral criteria suggest several potential approaches to independent state constitutional law. Subject to ethical constraints and procedural rules, we do not limit the substantive advocacy of parties who appear before us. Any party may make what it considers its most persuasive state constitutional arguments. As will be seen below, we have already explored all of the State’s neutral criteria in our cases, and the State’s effort in this case is essentially a repackaging and relabeling of concepts rejected in our caselaw. WTiile we have resisted any formula for constitutional adjudication, our caselaw amply illuminates the manner in which various authorities may contribute to the development of independent state constitutional law.
1. Development of the claim in lower courts. The first criterion proposed by the State is development of the claim in lower courts. This factor has not generally been cited by other criteria states: it is missing in Hunt, Edmunds, Gumvall, and other criteria cases. See generally, Williams at 146-62. The thrust of the State’s position here, however, can best be understood as one of issue preservation. The State in effect presses the view that if a party has not presented an argument based on its neutral criteria, any claim based upon an independent state constitutional theory is waived.
Even in criteria states, such an approach may not be followed. For example, in Pennsylvania, the court has emphasized that while briefing on its factors is certainly helpful, the failure to do so is not fatal to a state constitutional claim. See Commonwealth v. Swinehart,
In any event, we have established our approach to issue preservation regarding independent state constitutional law in a number of cases. When a constitutional claim is made but neither the State nor Federal Constitution is specifically identified, we consider the claim preserved under both the State and Federal Constitutions. See, e.g., State v. Harrington,
2. Constitutional text. The second criterion offered by the State is constitutional text. This is a common factor cited by many criteria states. See, e.g., Hunt,
The text of a constitutional provision is the starting point of analysis even in ambiguous and open-ended constitutional provisions like article I, section 8 of the Iowa Constitution. In the context of search and seizure law, however, textual analysis is often very challenging, so challenging that some preeminent authorities have concluded that the text itself offers no meaningful guidance on a number of key interpretive issues. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 353-54 (1974). Particularly challenging has been the relationship between the reasonableness clause and the warrant clause, an issue addressed at length in Short,
To the extent the state constitution has text not included in the Federal Constitution, like the language in article I, section 1 based on the Virginia Declaration of Rights, federal authority, of course, has little value. See City of Sioux City v. Jacobsma,
It is also true, as an abstract matter, that a case from another jurisdiction relying on a differently phrased state constitutional provision may be less authoritative than one decided under a similar state constitutional provision. This is not, however, to use the vernacular of the dissent, a bright-line rule. The underlying state court decision may not turn on distinctive language but may be based upon an analysis that applies with equal force to an Iowa constitutional provision covering the same subject matter. Different language in state constitutions may still have much in common, like the proverbial overlapping Venn diagram. Nonetheless, it is undeniable that a state court decision decided under a differently worded constitutional provision may be less persuasive or not persuasive at all, if the decision is based largely or exclusively on language absent from the counterpart in the Iowa Constitution.
One suspects, however, that in the hands of the dissenters, this factor is designed to be an ironclad, hard substantive criterion
To the extent the State argues that text should be considered in state constitutional adjudication, there can be no quarrel. Text is always a starting point in constitutional adjudication. It would be wrong, however, to suggest that the text of article I, section 8 provides a definitive answer to many complex search and seizure questions. Consistent with the above cited authorities, however, there is no implication that the mere fact article I, section 8 of the Iowa Constitution has language similar to the Fourth Amendment gives rise to a presumption that the federal interpretation should be adopted. The power of federal precedent turns “solely” on its persuasive power. See Ochoa,
3. Constitutional history, including reports of state constitutional debates and state precedent. The third criterion listed by the State is constitutional history, including reports of state constitutional debates and state precedent. Similar factors are cited in a number of criteria states. See, e.g., Hunt,
We reviewed the historical background of the Fourth Amendment extensively in Ochoa,
While we should be cautious of drawing overbroad conclusions from historical study, I agree with the State that historical study of the origins of the Fourth Amendment may be relevant to state constitutional analysis. In ShoH, for instance, we cited the work of Thomas Y. Davies, who has encouraged state supreme courts to engage in authentic search and seizure historical analysis to avoid unoriginal use of reasonableness that engages in relativistic balancing.
With respect to article I, section 8 of the Iowa Constitution, we surveyed the history in Ochoa and did not discover materials having a direct bearing on search and seizure law.
While the dissent in announcing its so-called neutral criteria embraces historical exploration, it avoids engaging in any historical consideration regarding what the Iowa founders would have thought of the proposed so-called neutral criteria. There is, of course, nothing in the debates about so-called neutral criteria. We do, however, know something about the founders’ view of federal law and the United States Supreme Court’s interpretation of it.
For example, George Ells, one of the leading Iowa founders, believed the Fugitive Slave Act of 1850 was an unconstitutional violation of due process. He stated that the Due Process Clause was “violated again and again by the dominant party in the land, which rides roughshod ove[r] the necks of freemen.” 1 The Debates of the
William Penn Clarke, another of the leading players in the constitutional convention, was a supporter of John Brown, and actively helped Brown smuggle fugitive slaves out of Iowa to their eventual freedom in direct defiance of federal law. See Lowell J. Soike, Necessary Courage: Iowa’s Underground Railroad in the Struggle Against Slavery 153-57 (2013) [hereinafter Soike]. Ells and Clarke do not seem to be the kind of persons who would write into the Iowa Constitution some principle of deference to federal judicial authority. And, of course, they did not.
However, the Iowa Constitution of 1857 contains provisions that were contrary to the Fugitive Slave Act of 1850, including the right to jury trials in cases involving liberty. See Short,
Further, throughout the 1850s, there was a battle in Iowa over enforcement of laws related to slaves or former slaves where state courts were the forum of choice because of the inhospitable climate in federal court on these issues. In the case of In re Jim (1848), a state court judge discharged a claimed slave and fined the detective who had detained him. See Robert R. Dykstra, Bright Radical Star: Black Freedom and White Supremacy on the Hawkeye Frontier 17-18 (1993). The detective did not give up, but convinced a federal judge in Dubuque to order a precept for arrest for Jim, the claimed fugitive slave. See id. at 18. Supporters of Jim, however, countered by obtaining a writ of habeas corpus in Muscatine from the acting Chief Justice of the Iowa Supreme Court who, after a hearing, held that the arrest was improper, released the defendant, and declared to bystanders, “here is a free man.” Id. (internal quotation marks omitted).
In another case involving a claimed fugitive slave in 1855, Governor James W. Grimes declared “if not in office, I am inclined to think that I should be a lawbreaker.” Cook at 65 (internal quotation marks omitted). He sent his associates to
The case of In re Ralph, of course, employed an approach to African Americans that was nowhere found in the federal caselaw.
The important point, however, with respect to search and seizure law specifically, is that the lack of direct historical materials related to article I, section 8 should not be charged as a factor against an independent interpretation of state law. The lack of historical materials neither supports nor opposes a state constitutional interpretation different from prevailing federal law.
4. Decisions of sister states, particularly when interpreting similar constitutional text. The fourth criterion proposed by the State is the decisions of other states, particularly when interpreting similar constitutional provisions. In general, review of authority in other states is a criteria almost universally found in criteria jurisdictions. See, e.g., Hunt,
Of course, there is no requirement authority exist in other states for a particular constitutional approach. Otherwise, the law would be the proverbial “fly frozen in amber.” By definition, there always has to be a first jurisdiction that moves when the law changes. No one explicitly suggests, even the dissent, that the law should never change. Further, some questions of state constitutional law may be of first impression, even among the various state jurisdictions. Certainly, as a general matter, the caselaw of other states may be the source of persuasive authorities to aid in the interpretation of Iowa constitutional law.
In order to be persuasive authority, however, a “me too” case in a lockstep jurisdiction that simply incorporates federal law without an evaluation of its persuasive reasoning is of little value. Such precedent is not part of the body of considered reasoning of constitutional principles. Instead, we look to the persuasive power of the reasoning of other state supreme courts which, using their independent judgment, have sought to develop what they consider the best and soundest approach to state constitutional law. In looking at the competing approaches in state precedents, we do not make our determination by a majoritarian numbers game that assumes resolution of sensitive issues of state constitutional law may be determined on some kind of state constitutional abacus. What is critical with state constitutional precedents in other states, as with all cited authority, is the underlying persuasive power of the reasoning. See Ochoa,
Thus, the independent work of other state supreme courts that present persuasive arguments may be of considerable value. There is a rich body of state constitutional authority on search and seizure law when state courts grapple with the challenging issues under their state constitutions. Such authority is readily available for Iowa practitioners in the pages of the various law reviews, easily accessible electronic databases, and in the works of Robert F. Williams, G. Alan Tarr, Jennifer Friesen, and others. See generally Baldon,
Further demonstration of the potential importance of developments in state constitutional law is revealed in Vance,
5. Practical consequences, including the need for national uniformity. The last criterion proposed by the State is consideration of practical consequences, including the need for national uniformity. Interestingly, none of the cases cited by the dissent has a similar criterion with emphasis on national uniformity.
In Short, we canvassed reasons why we rejected the argument that national uniformity should be an inhibiting factor in the development of independent state constitutional law.
6. Missing considerations. A striking feature about the State’s neutral criteria is what is not included. Fidelity to underlying constitutional values, for instance, is not a criterion, nor is analytical soundness, nor the right sizing of any rule that might be adopted. These concepts, however, are at the heart of our independent state constitutional adjudication.
In addition, the State does not mention the potential persuasive power of minority opinions of the Supreme Court. Majority opinions of the Supreme Court may be persuasive, but so too may concurring and dissenting opinions of that Court. Indeed, in Ochoa, we relied to a significant extent on Justice Stevens’s cogent dissent in Samson v. California,
7. Summary. Our caselaw has clearly addressed the significance of the neutral criteria proposed by the State in this case. While we have often considered text, history, and state and federal court precedents, we have refused to create a checklist that would erect a barrier to state constitutional development or provide a basis for unproductive satellite litigation.
Thus, the real problem for the State, and the dissent, is not lack of guidance, but disagreement with the guidance that has been provided. The dissent wants to erect artificial barriers to the development of independent state constitutional law. I reject them. The dissent believes that when the texts of state and federal constitutional provisions are similar, we should follow the federal model regardless of its lack of persuasive power. I reject that too. The dissent wants a strong presumption that federal law is correct. I say no. The dissent seeks to incorporate wholesale the substantive results of the recent trends in United States Supreme Court caselaw, results that it likes. We have rejected wholesale importation of federal law. We do, however, consider the merits of each case before us and carefully study United States Supreme Court cases, like other authorities, for persuasive power. I reiterate, the problem is not lack of guidance, but only disagreement with the guidance that has been provided.
III. Arguments on Merits of Automobile Exception.
The dissent takes a position on the merits of the application of the automobile exception under article I, section 8 of the Iowa Constitution to this case. Having urged this court to adopt the State’s neutral criteria, I assume the dissent represents the criteria in action. ■ The dissent provides a bulk cite of state authorities that follow the federal approach to the automobile exception in their interpretation of state constitutional law. It does not summarize or address the reasoning of caselaw that comes, to a different conclusion because it is not relevant. Unstated, but certainly implied in the criteria embraced by the dissent, is the notion that uniformity is important and the result is justified because the language of the Iowa constitutional provision related to search and seizure is similar to the Fourth Amendment. The opinion is consistent with the dissent’s approach to criteria, which is designed to prevent development of independent state constitutional law.
Our cases require a different methodology. Unlike the dissent, I would begin with the text of article I, section 8. From the text, we know the provision states people should be “secure” in their “papers and effects.” Iowa Const, art I, § 8. The search of a locked safe in an automobile at least raises my constitutional eyebrows in light of the language of the text. Certainly, the constitutional values underlying article I, section 8 are at least potentially implicated by the search of a locked safe in an automobile. We must inquire further.
Unlike the dissent, I would also identify a general framework for consideration of the issues. We have recognized we should apply article I, section 8 “in a broad and liberal spirit.” State v. Height,
Recognizing the potential implications of article I, section 8 on the search that occurred in this case, I next turn to the
This reduced expectation of privacy is based on two theories. First, it is contended that automobiles are used for transportation purposes on the open highway and thus no reasonable expectation of privacy should arise with respect to papers and effects found in automobiles. Id. at 12,
Next, I explore the validity of the rationales in light of the purposes of article I, section 8. A review of the literature quickly reveals the rationales behind the automobile exception have been roundly criticized. For instance, Professor Adams has analyzed the automobile exception in detail and found it wanting. James A. Adams, Search and Seizure As Seen by Supreme Court Justices: Are They Serious or Is This Just Judicial Humor?, 12 St. Louis U. Pub. L. Rev. 413 (1993) [hereinafter Adams]. According to Professor Adams, the mobility argument in support of the automobile exception “has no basic integrity” when the automobile has been immobilized through impoundment. Id. at 424. It has also been argued that while it might have taken hours or days to obtain a warrant when Carroll was decided, and therefore a warrant was impractical in the context of an automobile stop, such a rationale no longer applies in today’s technological world when warrants may be obtained in minutes rather than hours or days. See Chase,
The rationale supporting the automobile exception based upon a reduced expectation of privacy has also been questioned. For instance, as cited by Professor La-Fave, “ ‘personal effects so stored’ ” in automobiles are entitled to constitutional protections and that most Americans regard their automobiles as “ ‘more than merely a method of transportation.’ ” 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.2(b), at 735 (5th ed.2012) [hereinafter LaFave] (quoting Lewis R. Katz, Automobile Searches and Diminished Expectations in the Warrant Clause, 19 Am. Crim. L. Rev. 557, 571 (1982) [hereinafter Katz]). Professor Adams agrees decreased expectation of privacy embraced by the Supreme Court “has little to support it” and “merely stating that there is a diminished expectation of privacy in an automobile is not a valid basis for excluding automobiles from the warrant requirement.” Adams,
Certainly the Adams-LaFave points are worthy of serious consideration. Americans take great pride in their automobiles and their use is a basic feature of modern American life. They are not used simply for transportation. Automobiles are used as temporary homes or even a place to take a snooze after a long (or not so long) drive. Bank statements, recent mail, credit card invoices, love notes, and medical information may be stored in automobiles. Glove compartments and consoles are pretty good places to keep “papers and effects.” Professionals driving home from work take bundles of documents with them in both hard and electronic formats that are often placed on the back seat. In an interesting case, a judge noted he frequently takes work home in his automobile and observed that his vehicle was thus a usual mode for transporting “drafts of opinions, notations indicating the probable outcome of submitted cases, and confidential messages from other judges.” United States v. Edwards,
It is true of course, as a matter of fact, that automobiles are highly regulated. So are homes. Residents in the city have to comply with all manner of regulations. Do not burn the leaves. Take out the trash. Comply with building codes. No driveway here. Mow the lawn. Repair the sidewalk. Pipe down, for crying out loud, its 2 a.m.! Yet, these regulatory requirements do not serve as a categorical basis to defeat the warrant requirement as to the bedrooms, offices, and studies in all houses. Similarly, when an automobile is subject to registration and various regulatory requirements, these requirements at least arguably have nothing to do with your right to be “secure” in your “papers and effects” stored in the passenger compartment of the vehicle. So, maybe the regulation theory is at least subject to question.
Then, even assuming there is an automobile exception of some kind, the question arises regarding its scope. In other words, do the facts matter? Does it matter that the vehicle in this case was impounded? Which way does that cut? See, e.g., Jones v. State,
Among state courts, there is a split of authority on the question of whether there is a broad automobile exception under state constitutions. See 2 Jennifer Fries-en, State Constitutional Law: Litigating Individual Rights, Claims and Defenses § 11.08, at 11-101 & n. 441 (4th ed.2006). The interesting questions regarding the validity of the automobile exception and its scope should not be resolved by a declaration that the Iowa Constitution is worded similarly to the Federal Constitution and that federal law must be followed, not with a declaration that we must follow federal law to establish uniformity, and not with a bulk citation of caselaw that supports the automobile exception. Through its neutral criteria, the dissent seeks to prevent consideration of the underlying issues described above. It is our constitutional obligation, however, to do the nitty-gritty work of examining the available authorities and precedents — both state and federal— and determining which approach makes the most sense under article I, section 8 of the Iowa Constitution. In light of the court’s disposition, that analysis will await another day.
CADY, C.J., and WIGGINS, J., join this special concurrence.
. The consistency of traffic stops with constitutional requirements has been the subject of much contemporary debate in light of the United States Supreme Court’s evolving approach. In Whren v. United States, the United States Supreme Court held that a citizen
. In Tonn, this court embraced a stricter approach to search and seizure under the Iowa Constitution than federal law at the time of the decision.
. The dissent quotes Tarr who summarizes arguments about legitimacy that have been raised in the past, but omits his conclusion that the concern “has largely been put to rest.” Tarr at 169.
. There is a substantial debate in the literature as to whether and the degree to which stare decisis applies to constitutional interpretation. See Jack L. Landau, Some Thoughts About State Constitutional Inteipretation, 115
. To the extent the dissent claims to prefer a strong stare decisis doctrine, such an approach would be inconsistent with the weak stare decisis employed by the United States Supreme Court in Citizens United v. Federal Election Commission. Compare
. The dissent cites a footnote in a recent Utah case supporting its argument that we should adhere to federal precedent in interpreting parallel provisions of the Iowa Constitution. See State v. Houston,
In theory, a claimant could rely on nothing more than plain language to make an argument for a construction of a Utah provision that would be different from the interpretation the federal courts have given similar language. Independent analysis must begin with the constitutional text and rely on whatever assistance legitimate sources may provide in the interpretive process. There is no presumption that federal construction of similar language is correct.
Id. at 1115. Additionally, the dissent cites State v. Anderson, for the notion that Utah's preference is to interpret the search and seizure provision of the Utah Constitution in “accord with the Fourth Amendment.”
In declining to depart in this case from our consistent refusal heretofore to interpret article I, section 14 of our constitution in a manner different from the fourth amendment to the federal constitution, we have by no means ruled out the possibility of doing so in some future case. Indeed, choosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state’s citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts.
. Ells was taking the position announced by the Wisconsin Supreme Court in In re Booth, which found that the Fugitive Slave Act violated due process under the United States Constitution.
. The South Carolina Declaration also references the refusal of Iowa to forward murderers for prosecution, an apparent reference to the efforts of Governor Samuel Kirkwood to avoid the arrest and extradition of Barclay Coppoc, one of the participants in John Brown's raid. See Declaration of the Immediate Causes. Governor Kirkwood stalled representatives of Virginia with technicalities long enough to allow Coppoc to escape. See Soike at 165-171.
. The Iowa state historical materials may be thin in the sense that they do not directly address search and seizure issues but they are rich in another, more general sense. We know the 1857 framers, by putting the individual liberties in the first article of the Iowa Constitution, regarded them as having great importance. In addition, George Ells, Chair of the Committee on the Preamble and the Bill of Rights, declared " 'the Bill of Rights is of more importance than all the other clauses in the Constitution put together.’ " Short,
. More than thirty years ago, a frequently cited commentary in the Harvard Law Review noted that in considering the development of independent state constitutional law, the interests in uniformity “should seldom be a decisive factor.” Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1395 (1982).
. See Williams v. Florida,
Dissenting Opinion
(dissenting).
I respectfully dissent and join the separate dissent of Justice Zager. The majority correctly concludes this traffic stop and arrest were lawful, but then effectively overrules our precedent by requiring suppression of the firearm and narcotics found in the search of the safe behind the driver’s seat. In my opinion, this was a lawful search based on either of two exceptions to the warrant requirement: the automobile exception or the search-incident-to-arrest exception. Today’s opinion unduly restricts police searches and creates practical problems undermining public safety. I would affirm the district court’s eviden-tiary ruling that applied precedent allowing police to search contemporaneously the vehicle’s entire passenger compartment (including containers) at the scene when probable cause suрports the arrest of the driver.
The majority disregards how the parties framed the issues and briefed the appeal. Both parties recognized the automobile exception is at issue, yet the majority fails to address that alternative ground for upholding the search. The parties’ briefs and the majority opinion are two ships passing in the night. The bench and bar will have to read today’s tea leaves to guess the fate of the automobile exception in the next appeal. In my view, that exception should remain good law. The majority also disregards the State’s extensive survey of courts and commentators supporting use of neutral interpretive principles to guide departures from • federal precedent when we interpret identical provisions of the state constitution. The majority’s standardless approach appears result-oriented and provides no guidance. I reiterate my call for our court to adopt neutral interpretive criteria. Applying such criteria here, I would give the same words the same meaning in the Iowa and federal search and seizure provisions, apply existing precedent, and thereby affirm Gaskins’s convictions.
The reader should know some additional relevant facts missing from the majority opinion. The majority minimizes the drugs found in the search of the van as “several” small plastic bags of marijuana and pipes. The district court’s ruling is more informative:
The safe contained: “The Regent” 22 caliber revolver with a scratched off serial number loaded with eight bullets, a scale with marijuana residue, one larger sandwich bag[ ] containing eleven smaller sandwich bag[s] filled with ... marijuana, one plastic sandwich bag[] with a larger ball of ... marijuana, one box of sandwich bag[s], several larger ... freezer bags with an odor of “raw” marijuana, and various pipes and “one hitter” pipes.
... Ultimately, there [were] over forty-two grams of marijuana inside of Gas-kinses] vehicle. Officers testified that the weight and the bag[s] were indicative of resale and distribution of narcotics. Additionally, persons who engage in resale of marijuana typically carry weapons, like the one found in the safe, for protection.
All of the empty plastic bags tested positive for the presence of marijuana, as did the residue on the scale. The revolver contained Gaskins’s fingerprints. The officer who conducted the search of the van testified at the suppression hearing that the safe was within the reach of both Gaskins and his passenger at the time of the stop.
The majority also gives short shrift to relevant testimony at the suppression hearing. Officer Tatum, who initially arrested Gaskins, testified, “People that purchase drugs or sell drugs, they have a tendency not to carry them on their person, they usually hide them in specific places.” Officer Tatum further testified that he thought a search of the van would find more drugs in the vehicle, for several reasons. First, he smelled marijuana from within the van; second, Gaskins initially lied to him by denying that he had any drugs; and third, Gaskins then handed over the single, partially smoked blunt. As Officer Tatum testified, “Most people that use drugs or sell drugs, ... have a tendency to carry weapons.” Therefore, he was concerned that Gaskins had a weapon in the van, as well as items related to drug offenses. These facts further support the district court’s findings that the police had probable cause to search the van at the scene, including the safe within Gaskins’s reach at the time of the stop.
II. The District Court Should Be Affirmed Under Existing Iowa and Federal Precedent.
The search of Gaskins’s van was constitutional under our court’s precedent and the Fourth Amendment decisions of the United States Supreme Court. The majority not only departs from federal decisions, it overturns our own caselaw adopting those decisions, violating the principle of stare decisis. Our court in a unanimous decision recently stated, “Stare decisis alone dictates continued adherence to our precedent absent a compelling reason to change the law.” Book v. Doublestar Dongfeng Tyre Co.,
It nearly goes without saying that the doctrine of stare decisis is one of the bedrock principles on which this court is built. It is an important restraint on judicial authority and provides needed*40 stability in and respect for the law. The majority acknowledges the importance of this principle but fails to follow the standards we have developed to ensure its protection. While we would abdicate our role as a court of last resort if we failed to occasionally reexamine our pri- or decisions, we must undertake this weighty task only for the most cogent reasons and with the greatest caution.
Kiesau v. Bantz,
First, as in other contexts, stare decisis fosters Rule of Law values. These include consistency and equal treatment, stability, and predictability at any one time and over time. Following precedent, moreover, saves lawyers and judges from having to rethink every legal question from the ground up whenever a question arises. And precedent affords lawyers and lower court judges common points of reference from which to engage productively.
Second, in the present context, stare decisis fosters constitutionalism. It constrains the exercise of arbitrary power by the Court. It denies the Court freedom to pick and choose the precedents it will follow. It also tends to bring unity to the Constitution as it is practiced over time, and the Court’s composition changes.
Third, stare decisis fosters legitimacy, which requires the Court to have, and be perceived as having, adequate legal justifications for its decisions. Justifications flowing from the Court’s precedents tend, at the least, to be so perceived. Even when the Justices disagree, the disagreement will be perceived to be one about the law when all of them reason from the same starting points. To the extent possible, the Constitution and precedents interpreting it should form a coherent corpus of law, widely perceived and practiced as such.
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Both stare decisis and overruling are constitutionally vital. For the reasons to be given below, the Constitution requires the Court to practice stare deci-sis. It is necessary to the Court’s unifying mission, and it is a stabilizing force in a constitutional system under the Rule of Law. In addition, the Rule of Law entails the Court’s duty to follow its constitutional precedents: The Court has a duty to follow the law; such precedents are parts of the law; therefore, the Court has a duty to follow such precedents.
At the same time, the Court’s power to overrule is vital for maintaining constitutionalism by correcting mistakes and updating the law. Overruling, moreover, is the only effective check on the Court’s exercise of its power to interpret the Constitution. The Court’s power to overrule also is essential to the constitutional system’s continuing legitimacy.
Steven J. Burton, The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication, 35 Cardozo L. Rev. 1687, 1696-97 (2014) (footnotes omitted). Professor Burton also aptly observed, “A Supreme Court not bound by its precedents likely would vacillate over time as its composition changes, yielding unacceptable discontinuity and instability, and deflating the Court’s legitimacy.” Id. at 1710.
I agree with the majority that we should reexamine our search and seizure precedent in light of changes in Fourth Amendment jurisprudence and that Gant narrowed Belton. See Arizona v. Gant,
The special concurrence today throws stones from a glass house by accusing the dissenters of infidelity to stare decisis. See State v. Young,
A. Error Preservation. The majority implicitly concludes the State waived error as to the automobile exception. Yet, the majority generously concludes Gaskins preserved error for his claims under the Iowa Constitution with a cryptic citation in district court. Gaskins never argued in district court that Iowa should depart from precedent to abandon the “evidence” prong of Gant under our state constitution. Yet, the majority vacates Gaskins’s conviction based on that very argument, first made on appeal. The majority thereby reverses the district court for failing to credit an argument the defendant never made at trial. Is it fair to our trial judges and to the State to reverse suppression
The majority repeats a result-oriented approach of playing “gotcha” with the State to avoid alternative grounds to uphold a police search, while forgivingly considering a defendant’s bare mention of the Iowa Constitution in district court to be sufficient for our court to make new state constitutional law.
The State put the automobile exception in play at the suppression hearing, arguing, “Clearly we have exigent circumstances. We have got a vehicle. We are not looking at the same type of threshold as a home or something along those lines.... ” Exigent circumstances (specifically mobility) and the diminished expectation of privacy in a vehicle are rationales supporting the automobile exception, not the search-incident-to-arrest exception. Compare Gant,
Nor did the State abandon the automobile exception on appeal. To the contrary, both parties focused their appellate arguments on that exception. Gaskins’s appellate brief specifically urged our court to abandon the automobile exception under the Iowa Constitution and devoted fifteen pages to arguing the automobile exception should be found incompatible with the Iowa Constitution. Gaskins never contended the State waived error on the automobile exception. The State’s appellate brief in turn argued the search was valid under the automobile exception and urged our court to adhere to our precedent. The State’s appellate brief devoted thirty pages to arguing the automobile exception should remain good law under the Iowa Constitution. The issue is preserved for our review. See State v. Howard,
JUSTICE HECHT: Counsel, to what extent is the automobile exception even really before us? As I read the record on the motion to suppress, the only thing asserted as a justification for no warrant was the search was incident to an arrest and that appears to me to be the only exception that the district court addressed and so why do — why are we even looking beyond that in this case?
MS. LUCEY: I think if you find that it’s not a search incident to arrest, then you need to go to that next step, is there another exception that would uphold this ruling.
JUSTICE HECHT: Even if it’s not asserted by the State?
MS. LUCEY: I think in prior cases they certainly say that, yes. In State v. Vance, there is a dissent that indicated, well, why are we preserving this for postconviction relief if there is this other viable, potential exception.
Later in the argument, Gaskins’s counsel again declined my colleague’s invitation to argue the State waived the automobile exception:
To answer your question earlier about preservation, when you look at what the State argued, what the defense argued and what the Judge ultimately decided, it seems like they are talking about search incident to arrest but they use probable cause on occasion. So, [it is] sort of both decided and if there is no justification for the search incident to arrest under Gant.... None of that was introduced but a fair reading may actually show probable cause in exigent circumstances and that’s why I briefed it. Does that help?
The State’s counsel, in turn, stated unequivocally at oral argument that “[w]e are talking about the automobile exception.” We normally decide appeals based on the issues as framed by the parties. See Feld v. Borkowski,
Even if the majority were correct in concluding that the automobile exception was not adequately raised below, we “will uphold a ruling of the court on the admissibility of evidence on any ground appearing in the record, whether urged below or not.” State v. Parker,
B. The Search Is Valid Under the Automobile Exception. In State v. Olsen, we unanimously adopted the federal standards for the automobile exception.
The federal automobile exception, also known as the Carroll-Chambers doctrine, is clear, well-settled, and takes a broad view of the exigency created by the mobility of a vehicle. The seminal case of Carroll v. United States outlined the doctrine and its reasoning:
We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
Id. at 52,
It is therefore significant that the practical consequences of the Carroll decision would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle. Contraband goods rarely are strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container.
Id. at 820,
Our court has consistently applied the automobile exception:
We have repeatedly held that where there is probable cause and exigent circumstances, a warrantless search does not violate a defendant’s constitutional rights against unreasonable searches and seizures. A trailerless semi-truck, because of its inherent mobility, presents an exigent circumstance. This is the so-called “automobile exception” to the well-established legal maxim that warrantless searches are per se unreasonable. Even if police lack a valid warrant, they may search a vehicle if they have probable cause to believe a crime, or evidence thereof, may be found within it.
Maddox,
I agree that the district court correctly found probable cause to search the safe. The majority does not contend otherwise. When Officer Tatum first pulled Gaskins over, he detected a strong odor of marijuana wafting from the van. That alone is probable cause to search the van. See State v. Watts,
Moreover, Gaskins initially lied about possessing marijuana then voluntarily turned over a partially smoked blunt. Officer Tatum testified that drug users fre
The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.
Ross,
Gaskins’s appellate brief asks us to abandon the automobile exception as inconsistent with the Iowa Constitution. This would be a significant departure from well-established state and federal law, requiring us to overturn Olsen and its progeny, including Maddox, and to diverge from federal precedent. There is no basis for this departure in our constitutional text or history. See State v. Short,
To provide greater uniformity in the assessment of individual cases and more consistency with regard to the admissibility of the fruits of vehicular searches based on probable cause, a more easily applied rule — such as that of the federal automobile exception — is called for.
This position is supported by the fact that we, in agreement with the U.S. Supreme Court, have long considered the immobilization of a motor vehicle while securing a search warrant to be an alternative to the immediate search of the vehicle because it is far from clear which course constitutes the greater intrusion.
Commonwealth v. Gary,
C. The Search Incident to Arrest. Just one year after adopting the fed$ral standard for the automobile exception in Olsen, we did the same for the federal standard of vehicle searches incident to arrest.
We can, if we choose, impose stricter standards in applying our own constitutional provisions than the United States Supreme Court did in Belton. However, we believe Belton strikes a reasonably fair balance between the rights of the individual and those of society. We adopt it now as our rule.
Sanders,
As the majority notes, Chimel v. California, a case involving the warrantless search of a house after an arrest, is the leading case for the search-incident-to-arrest exception.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the ar-restee, so also will containers in it be within his reach.
Id. Most recently, in Gant, a man was arrested for driving with a suspended license, handcuffed, and placed in the back of a patrol car.
*49 Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Id. at 351,
This appeal presents our first opportunity to apply Gant. Under Gant, the search of Gaskins’s van and the safe within it was a valid search to look for evidence of the offense of arrest. See id. The majority nevertheless reaches a different result under article 1, section 8 of the Iowa Constitution. Neither the text of that provision nor its history supports the conclusion that greater restrictions on law enforcement are required. See Short,
III. Practical Problems.
The majority’s decision will lead to practical problems and undermine public safety. Under the new rule created today, Officer Tatum could search the safe only while it was within Gaskins’s reach, i.e., while Gaskins remained in the driver’s seat. Officer Tatum could no longer search the van or safe without a warrant once he removed Gaskins from the van. Why place Iowa peace officers in the position of choosing whether to search for a weapon while it remains in the suspect’s reaсh, risking a deadly encounter? Why not continue using existing precedent, allowing the officer to take the safer approach of locking the suspect in the squad car before searching containers in the vehicle that had been within the suspect’s reach?
Moreover, why force officers to impound vehicles pending a warrant to conduct a search instead of permitting a quick search at the scene under existing precedent? Officers who forego the search may lose evidence supporting the arrest. Officers who impound the vehicle will increase the inconvenience for the driver and occupants.
The majority replaces a clear rule allowing a search of the entire passenger compartment upon the arrest of an occupant with a vague, fact-specific rule under which the admissibility into evidence depends on what was within the suspect’s
a bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens. Law enforcement officials have to make many quick decisions as to what the law requires where the stakes are high, involving public safety on one side of the ledger and individual rights on the other.
Welch v. Iowa Dep’t of Transp.,
Finally, today’s decision creates two different rules for state and federal proceedings. “We have an interest in harmonizing our constitutional decisions with those of the Supreme Court when reasonably possible.... ” Olsen,
Uniformity also fosters equality under the law, the first core value in the Iowa Judicial Branch’s Mission Statement. Unnecessary departures from federal law cause inequity and unfairness. The public is rightly confounded when prosecutions on identical facts face a different fate in Nebraska or Illinois than Iowa. Even more difficult to rationalize is the defendant arrested in Des Moines who cannot be prosecuted in the Polk County District Court, but can be prosecuted up the street in the United States District Court for the Southern District of Iowa.
(Footnote omitted.) All these problems are avoided by adhering to existing precedent.
IV. The Need for Neutral Interpretive Principles or Divergence Criteria.
Our court lacks consensus on the value of neutral interpretive criteria to guide departures from settled federal precedent construing a nearly identically worded search and seizure provision. This appeal, however, is the first time the State has weighed in specifically advocating for the adoption of such criteria. In our prior cases debating the use of such criteria, the State had been blindsided by the majority’s departure from settled federal precedent and thus had no reason to urge divergence criteria. Our court’s prior decisions lacked the benefit of advocacy by the parties on divergence criteria. The majority today simply rejects in a footnote the State’s request to adopt such criteria without confronting the extensive authorities marshaled by the State.
I will strive to avoid repeating what we have said before, but need to set the stage for this discussion today. In State v. Pals,
The dissenters in Short took issue with the majority’s divergence from a unanimous United States Supreme Court decision that has been followed by nearly every other state supreme court without academic criticism. See id. at 507-19 (Waterman, J., dissenting) (calling for use of criteria); id. at 519-27 (Mansfield, J., dissenting) (responding to the majority’s ten principles); id. at 527-45 (Zager, J., dissenting). In response to Short, the State in this appeal has called for the adoption of neutral criteria because “Short has left the bench and bar without guidance for litigating state-constitution claims.” The State aptly observed:
Our system of constitutional governance makes the bargain with unelected judges that they may invalidate the popular will of the people’s elected branches, so long as they remain faithful to constitutional principles and respect the distinction between jurist and legislator. One gauge of faithfulness and judicial legitimacy involves consistency] or divergence between state and federal constitutional law.
(Citations omitted.) Accordingly, the State asks our court to adopt the following “five criteria to guide state constitutional advocacy”:
1. Development of the claim in lower courts;
2. constitutional text;
*52 3. constitutional history, including reports of state constitutional debates and state precedent;
4. decisions of sister states, particularly when interpreting similar constitutional text; and
5. practical consequences, including the need for national uniformity.
The State cites an empirical study showing that Washington’s adoption of criteria improved advocacy and reduced illegitimate pleas for result-oriented departures from federal law: Richard S. Price, Arguing Gunwall: The Effect of the Criteria Test on Constitutional Rights Claims, 1 J. Law & Cts., 331, 355-58 (2013). I believe we would see the same benefits from adopting neutral divergence criteria in Iowa.
The Wyoming Supreme Court reaffirmed its use of divergence criteria last year:
Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned. The analysis required to establish greater protection under the state constitution involves a systematic review of applicable criteria, which may include the six non-exclusive neutral criteria recognized in [Saldana v. State,846 P.2d 604 , 622 (Wyo.1993) ]: 1) the textual language of the provisions; 2) differences in the texts; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern.
Norgaard v. State,
Such criteria provide guidance for the bench and bar, which is missing from the majority’s approach of simply diverging when it finds federal precedent unpersuasive. Today’s departure from Gant cannot be justified under the Norgaard criteria or the criteria proposed by the State. Neither the majority nor the special concurrences cite any textual difference,
The special concurrence — based on its selective view of Iowa history — maintains that two of the framers of the 1857 Constitution “do not seem to be the kind of persons” who would favor judicial deference to United States Supreme Court interpretations of identical Iowa constitutional provisions. This argument based on character evidence would not be credited in a court of law and is unpersuasive to me. The constitutional debates actually show that because some of our framers objected to the 1850 Fugitive Slave Act, they inserted special language in the Iowa Constitution to assure the right to a jury trial for fugitive slaves. See Young,
To a large extent, the special concurrence repeats arguments made before, and I refer the reader to past responses to those arguments. See, e.g., Short,
I agree with this statement by the Utah Supreme Court: “Our jurisprudence does not garner precedential weight if, and only if, we adopt a standard that diverges from federal practice. Such a view contradicts our long-standing practice of looking to federal interpretation for guidance.” State v. Houston,
It is therefore unsurprising that many state supreme courts use neutral criteria to determine whether to diverge from federal interpretations of the same or similar language. See, e.g., State v. Harmon,
When courts like ours diverge from federal precedent without using divergence criteria, dissenting justices are quick to protest. E.g., People v. Ramey,
Many commentators advocate that divergence criteria should be utilized when interpreting state constitutions. See, e.g., Paul G. Cassell, The Mysterious Creation of Search and Seizure Exclusionary Rules Under State Constitutions: The Utah Example, 1993 Utah L. Rev. 751, 796 (1993) (identifying four criteria and criticizing unprincipled state constitution decisions); George Deukmejian & Clifford K. Thompson Jr., All Sail and No Anchor — Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975, 987-96 (1979) (noting commentators consider state constitution departures without criteria to be “result-oriented” and advocating for analysis based on constitutional text, history, and a need for uniformity); Paul S. Hudnut, State Constitutions and Individual Rights: The Case for Judicial Restraint, 63 Denv. U. L. Rev. 85, 103-05 (1985) (suggesting criteria are necessary for a principled body of state constitutional law, arguing courts should also consider whether the issue presented concerns national or purely local interests); Steven J. Twist & Len L. Munsil, The Double Threat of Judicial Activism: Inventing New “Rights” in State Constitutions, 21 Ariz. St. L.J. 1005, 1065 (1989) (advocating for state constitution decisions “firmly grounded in text and original meaning”); Robin B. Johansen, Note, The New Federalism: Toward A Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297, 318-19 (1977) (setting forth factors). See generally Hans Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 392 (1980) (“[T]o make an independent argument under the state clause takes homework — in texts, in history, in alternative approaches to analysis. It is not enough to ask the state court to reject a Supreme Court opinion on the comparable federal clause merely because one prefers the opposite result.”); Earl M. Maltz, The Dark Side of State Court Activism, 63 Tex. L. Rev. 995 (1985) (criticizing the “noninterpretive” approach, noting approaches based on criteria are more legitimate); Robert F. Utter, The Practice of Principled Decision-Making in State Constitutionalism: Washington’s Experience, 65 Temp. L. Rev. 1153, 1157 (1992) (“Without neutral criteria to aid in developing or selecting a state constitutional standard, courts relying on the state constitution ... create the impression that reliance on the state constitution is merely result-oriented— that is, not dictated by sound reasoning.”). A recent student note aptly focused on our court’s standardless divergence from federal precedent in juvenile sentencing cases and called for our court to adopt principled interpretation standards for adjudicating state constitutional claims. Elisabeth A. Archer, Note, Establishing Principled Interpretation Standards in Iowa’s Cruel and Unusual Punishment Jurisprudence, 100 Iowa L. Rev. 323, 360 (2014).
The State’s appellate brief summarizes the lessons of these authorities as follows:
State-constitution decisions made without neutral principles or criteria risk being seen as — or actually are— result oriented. Regardless of ideological bent, result-oriented judicial outcomes should be avoided. Today’s court may favor expansive protection for crim*56 inal offenders, while tomorrow’s favors the property rights of the ultra-rich or elevates capitalist concerns above environmental interests. The “persuasiveness” approach taken by this Court in Short will allow judges to “mistake personal preferences for constitutional compulsion” and should be abandoned.
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The problem is this: interpreting the state constitution without reference to federal decisions or any interpretive criteria is like playing a sport where only the referee knows the rules. The players can walk onto the field with a bat and ball, but they don’t have any idea how the equipment is to be used, which points count and which don’t, or even how to win. At the end of the game, the referee declares a winner, but the players are left unsatisfied and spectators question the game’s legitimacy. So too for this Court after Short.
Short’s “persuasiveness” rule turns constitutional law into a guessing game — and neither the State nor a defense attorney can fairly guess what will be found most “persuasive” to this Court or predict what constitutional rules will result from litigation. No doubt this will be reflected in briefing that comes before this Court, where state-constitution claims will continue to be inadequately briefed and underdeveloped.
(Footnote and citation omitted.)
I agree with the State’s criticism of Short. I also agree with the State’s criticism of the majority’s practice, repeated today, of diverging from federal precedent to decide a state constitutional question without using criteria:
Proceeding down the road of state-constitution divergence without clear criteria or guideposts will mean that all that is required for constitutional change is a change in appellate-court membership. • This is inconsistent with the American separation of law and politics, eliminates any distinction between the courts and the elected branches, and injects substantial uncertainty that undermines stare decisis. Like a boat without a rudder, the lack of clear interpretive criteria will leave this Court’s jurisprudence subject to shifting winds and changing tides, rather than providing the measured stability contemplated by our constitutional framers.
I would encourage the bench and bar to brief and argue divergence criteria to guide our state constitutional adjudication, notwithstanding the majority’s failure to acknowledge the value of doing so. None of the various divergence criteria supports the majority’s divergence from Gant today.
V. Conclusion.
For these reasons, I would affirm the district court decision.
MANSFIELD and ZAGER, JJ., join this dissent.
. The majority’s practice of finding greater rights under'article I, section 8 of the Iowa Constitution did not begin with State v. Tonn,
. Given our court's long-standing practice of following Federal Fourth Amendment decisions, it was foreseeable to the parties and district court that in light of Gant, we would revisit our search-incident-to-arrest precedent that had relied on Belton. See State v. Vance,
. For example, in Ochoa, this court concluded the State waived several grounds for upholding a warrantless search of a parolee's motel room based on consent.
Similarly, in State v. Pals, our court considered the constitutionality of a consent search following a traffic stop.
. The State argued that Gaskins waived error by failing to assert in district court that the automobile exception should be abandoned. The State observes that if Gaskins had done so, it could have developed the record at the suppression hearing on that issue. A remand would allow the district court to decide the Iowa constitutional claims based on a more fully developed record. Cf. State v. Hoeck,
. The separate special concurrence of Chief Justice Cady predicts that EDMS technology will eliminate the need for the automobile exception because officers can obtain warrants electronically from the field. This is not the time to address the impact of EDMS. EDMS was not available statewide at the time of the incident, and Officer Tatum did not have EDMS in his squad car for the search at issue today. Accordingly, neither party briefed the impact of EDMS, and no factual record was made regarding use of EDMS. See State v. Ritz,
. Gaskins was lawfully stopped by the police while driving his van on a public highway. He does not claim he was living in his van. Accordingly, there is no basis for extending the heightened privacy rights for a home to this case. Gaskins’s van is not his castle.
. The special conсurrence refers to several concurring opinions suggesting the concern for officer safety no longer justifies a warrant-less search once a suspect is handcuffed. Just this month, however, a police officer in New Orleans, Daryl Halloway, was reportedly shot dead by a handcuffed arrestee. Suspect sought in kilting of New Orleans police officer, USA Today, June 20, 2015, available at: http://www.usatoday.com/story/news/nation/ 2015/06/20/suspect-sought-slaying-new-orleans-police-officer/29036471/.
. The special concurrence argues inconvenience to law enforcement does not justify departures from the warrant requirement, but fails to address the inconvenience to motorists and their passengers that will result from today’s decision.
. The special concurrence accuses the dissenters in this case of being engaged in "perpetual dissent” because Ochoa, Pals, Baldon, and Short previously rejected the adoption of neutral criteria for deviating from federal interpretation of the Fourth Amendment. This accusation disregards a couple of points.
First, is a "perpetuity” four days? On June 26, 2015, we concurred in the court’s opinion in State v. King,
Second, the court has never before confronted a party's request (in this case, the State of Iowa) to adopt specific neutral criteria — and still has not confronted that argument today. The lengthy rejection of neutral criteria comes today in a special concurrence, not in the opinion of the court.
. I do not share the majority's self-confidence. I see a difference, for example, between the four-three decision of our court in Short finding broader rights for a probationer under the Iowa Constitution, decided without the benefit of adversarial briefing on that issue, and the unanimous decision of the United States Supreme Court in United States v. Knights,
. The difference between a semicolon and a comma is inconsequential. See Short,
One expects that, if the semicolon in Article I, section 8 fundamentally altered the meaning of that provision, this argument would have emerged at some point within the first 150 years this Court interpreted the Iowa Constitution — not for the first time in 2010.
Neither the wide-ranging special concurrence nor the majority today mentions the semicolon argument as a reason to find broader search and seizure restrictions on law enforcement under the Iowa Constitution. The majority previously relied on that argument. See Short,
. The special concurrence cites our court’s storied decision, In re Ralph,
. In my view, it is the majority's combination of (1) failing to give any deference to established Fourth Amendment interpretations while (2) devising its own interpretations without a proper adversarial process that has been so harmful to jurisprudence. While there are examples of other state supreme courts not following federal constitutional precedent, I am unaware of any other state supreme court that has been so willing to do so sua sponte. Cf. State v. Tiedemann,
. The special concurrence cites several Minnesota Supreme Court search and seizure decisions departing from federal precedent. The cited decisions predated that cоurt’s use of a nonexclusive list of factors for departing from federal precedent beginning in Kahn v. Griffin,
Dissenting Opinion
(dissenting).
I join Justice Waterman’s dissent. I write separately because I am not persuaded that there are sufficient reasons to justify our departure from Arizona v. Gant,
In Chimel v. California,
In New York v. Belton,
The Court broadly held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460,
“The authority to search the person incident tо a lawful custodial arrest, while based upon the need to disarm and to*58 discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”
Id. at 461,
As recognized by the majority, after Bel-ton was decided it became the subject of significant criticism by legal scholars, lower courts, and eventually members of the Supreme Court. See Thornton v. United States,
In Gant, the defendant pulled into the driveway of a house where police were already present. Id. at 336,
The Court began its analysis by recognizing that many lower courts understood Belton as authorizing “a vehicle search ... incident to every arrest.” Id. at 342-43,
The majority criticizes Gant’s second prong as being divorced from Chimel’s underlying rationales. I do not necessarily disagree with this assertion. But Chi-mel applied to a residence and not an automobile. Thus, Chimel’s rationales
First, as recognized by the majority, Gant did not overrule Belton, which applies in the automobile context. Instead, it identified a very specific problem with lower courts’ interpretations of Belton that permitted police searches of automobiles upon an arrest without limitation. Other decisions of the Court authorized police to arrest individuals for minor infractions, see Atwater v. City of Lago Vista,
Second, under the Fourth Amendment, automobiles are “a category of ‘effects’ which give rise to a reduced expectation of privacy,” and which possess an inherent exigency-mobility. Thornton,
Third, the rule adopted by the majority unwisely forces an officer to choose between securing an individual early on during a roadside encounter and leaving the individual unsecured so the officer can search the vehicle’s passenger compartment. This compromises officer safety and creates an additional opportunity for the destruction or concealment of evidence. See Thornton,
Fourth, as noted by the majority, we had previously adopted the Belton rule under the Iowa Constitution. State v. Sanders,
Finally, the authority cited by the majority in support of rejecting Gant’s second prong under the Iowa Constitution is unpersuasive. For example, the majority asserts the Chimel Court specifically rejected the historical precedent the Gant Court relied on in support of its second prong. Was the Gant Court not aware the Chimel Court rejected this precedent? In fact, as evidenced by the opinion, the Gant Court was aware the Chimel Court rejected this precedent. It distinguished Chimel by implicitly recognizing that Chimel involved a search incident to an arrest in a home as opposed to an аutomobile. See Gant,
Further, many of the out-of-state cases cited by the majority in support of its position that we should diverge from the Supreme Court’s interpretation of the Fourth Amendment are unpersuasive. In most cases, they are unpersuasive because of the timing of the decisions or differences in the state constitutional provisions at play. First, most of the out-of-state cases cited by the majority were decided before the Gant decision in 2009. See State v. Hernandez,
Several of the cases cited by the majority are distinguishable on other grounds. For example, the majority cites a Louisiana case. See Hernandez,
Our state constitution’s declaration of the right to privacy contains an affirmative establishment of a right of privacy, explicit protections against unreasonable searches, seizures or invasions of property and communications, as well as houses, papers and effects, and gives standing to any person adversely affected by a violation of these safeguards to raise the illegality in the courts. This constitutional declaration of right is not a duplicate of the Fourth Amendment or merely coextensive with it; it is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.
Of the two out-of-state cases cited by the majority decided after Gant, only one rejects Gant’s second prong under its state constitution. Compare Rose v. Commonwealth,
Finally, the majority does not consider at least one state court decision adopting Gant’s second prong under its state constitution. See State v. Dearborn,
The majority implies, and the special concurrences expressly assert, that modern technology, including our first-in-the-nation EDMS system, makes obtaining a roadside search warrant quick, easy, and efficient for law enforcement. Accordingly, no exigency justifies relaxing the warrant requirement in this context such that law enforcement should now be required to obtain a search warrant in effectively all roadside-stop cases. Not too much to ask, right? It then chides law enforcement: “[I]f a warrant cannot be expeditiously obtained, the problem is not with the warrant requirement of article I, section 8, but is likely an administrative problem that needs to be resolved by local authorities.” These assertions are neither grounded in logic or reality here in Iowa nor are they supported by any authority.
As the special concurrence notes, a federal trial court in the southern district of Iowa has noted that it may take police as little as twenty minutes to obtain a search warrant by telephone. United States v. Baker,
No one disputes that the prohibition against unreasonable searches safeguards people at all times and in all Iowa counties. But, based on nothing more than the three cases noted above and aspirations surrounding EDMS, the majority seems to believe an officer can simply type up a search warrant application, contact a judicial officer, and get permission to search a vehicle irrespective of the time of day or whether the stop occurs in a rural or urban setting. This factual assumption is simply not true. EDMS is not, and in all likelihood will not be, a 24/7 virtual magistrate. And, unlike under the Federal Rules of Criminal Procedure and the California Penal Code, there is no provision under Iowa’s search warrant statute authorizing telephonic or electronic warrants. See generally Iowa Code §§ 808.1-.15. In fact, the Iowa Code specifically requires that all applications for search warrant be in writing. See Iowa Code § 808.3.
How many roadside stops occur after five o’clock? How many on the weekends? What about state holidays such as Memorial Day, the Fourth of July, and Labor Day? The point is, judges are often not available, and finding one may take significant time. Does the majority’s get-a-warrant-because-it’s-quick-and-easy rule apply at all times? In all places? Is the majority prepared to accept and support telephone applications for search warrants or search warrants by other electronic means? If it is, it has cited to no Iowa case supporting a telephonic or electronic search warrant, and I am likewise unable to find any such authority. Are we really prepared to change our present-day search and seizure jurisprudence based on future technology? Getting a warrant in this context is not simply a matter of inconvenience for law enforcement. In many cases, given the lack of current infrastructure, obtaining a warrant is both impractical and unrealistic.
If, as the majority maintains, it is really so important that police obtain a search warrant in this context, then it should truly be quick and easy for them to do so. But, even if it were truly that quick and easy, is it really necessary to require a search warrant under most circumstances in this context? Gant’s well-reasoned, bright-line analysis provides the answer: No. The majority’s holding — “a warrant is generally required before such a search”— is overgeneralized, divorced from reality, and adds little guidance to our search and seizure law.
The majority effectively eliminates searches incident to arrest in the automobile context. Under its new rule, when police make an arrest and remove the arrestee from the automobile, in most cases, they can no longer search the automobile’s passenger compartment absent a search warrant. This is not only unreasonable, but leads to absurd results. In my opinion, Gant establishes reasonable parameters for when police may search a motor vehicle incident to a lawful arrest. Thus, I would adopt Gant’s second prong and hold that “[pjolice may search a vehicle incident to a recent occupant’s arrest”
WATERMAN and MANSFIELD, JJ., join this dissent.
. In very limited circumstances, the Iowa Code authorizes a judge or magistrate to issue a search warrant based on information communicated by telephone. See, e.g., Iowa Code § 321J.10(3) (authorizing a blood test pursuant to a search warrant obtained via telephone under certain, exigent circumstances); id. § 462A.14D(3) (same). None of these sections apply in this case.
Concurrence Opinion
(concurring specially).
I concur in the opinion of the majority. All searches must be reasonable, and reasonableness must both justify the search and constrain its scope. See State v. King,
Additionally, a recognized exception to the warrant requirement cannot live beyond the life of the justification responsible for its existence. The automobile exception to the warrant requirement was created by the United States Supreme Court ninety years ago during Prohibition. See Carroll v. United States,
An automatic exception to the warrant requirement, particularly one based on exigency, must account for the new world of technology, and must not continue to exist simply because it existed in the past. In some instances, this new world may require movement from an automatic exigency to the standard exigent-circumstances requirement in which the rapid nature of occurrences precluding the wait for a warrant must be explained on a case-by-case basis.
WIGGINS, J., joins this special concurrence.