Lead Opinion
In this case, we consider the validity of a warrantless search of a probationer’s home by police officers. The defendant was charged with burglary and theft. The defendant filed a motion to suppress, challenging the admissibility of evidence obtained from the search. The defendant contended the search warrant was invalid because it inaccurately described the house to be searched and because an alteration of the warrant based upon a telephonic conversation with the issuing judge was invalid. The district court overruled the motion to suppress. For the reasons expressed below, we reverse the district court and remand the case for further proceedings.
I. Factual Background and Proceedings.
On May 18, 2011, a Plymouth County deputy sheriff responded to a report of a burglary of a home. The deputy met with the resident who reported a number of missing items, including two televisions, two jewelry boxes with assorted jewelry, a gift card to Minerva’s Restaurant, and a camera. The deputy’s investigation revealed that a doorjamb had been broken when the door was apparently forced open. There was a partial shoe print on the outside of the door and partial fingerprints on the door. Tire impressions were found going from the concrete driveway into the grass along the side of the house.
Law enforcement contacted Minerva’s Restaurant and advised that a $100 gift card had been stolen. Based on their inquiries, sheriff deputies obtained a receipt from the restaurant that was generated from the gift card’s use. Justin Short’s signature appeared on the receipt. Deputies also interviewed the waitress and the manager, who identified a photo of Short as the person who used the card.
Deputies received an informant’s tip that the car of Short’s girlfriend, Leya Lorenzen, was parked at 272Í Jones Street in Sioux City. Law enforcement obtained a search warrant for that address from a district associate judge in Le Mars. The application identified the place to be searched as a “single story wood frame home white and yellow in color” with a “single stall garage.” Local police assisting in the search, however, later reported that Lorenzen did not reside at the location identified on the warrant. After law enforcement inquired at the address identified on the warrant, the resident who answered explained that he did not know Lorenzen or Short but stated that there was an apartment next door and “people are coming and going from there all the time.” The new location was a two-story house that had been converted into four apartments. Deputies then contacted the owner of the apartment building and learned that Lorenzen had rented an apartment at 2723 ½ Jones Street, which was the upstairs apartment.
At this point, law enforcement called the judge who issued the original search warrant and asked if they should return to Le Mars to get another search warrant. According to the testimony of the law enforcement officer at the hearing on the motion to suppress, the district associate judge gave law enforcement verbal authorization to change the address on the warrant and “to note that this was done tele-phonically through the authority of’ the issuing judge. Law enforcement scratched out the address on the original warrant and wrote in the new address. Law enforcement also scratched through the word “yellow” describing the house, however they left the description of the place to be searched as “a single story wood frame home.” No statement was added to the original warrant indicating
Law enforcement then conducted a search of the apartment at 2723 ½ Jones Street. Upon executing the search, police found two flat screen televisions, two jewelry boxes taken in the burglary, the stolen Minerva’s Restaurant gift card, and a receipt in Short’s wallet. After receiving Miranda warnings, Short admitted that he kicked in the door of the residence, took the missing items, and pawned some of the items at a local pawn shop. Short was subsequently charged with burglary and theft.
During the investigation, law enforcement learned that Short was on probation related to other crimes. Although probation officials were contacted in connection with the burglary investigation, they did not participate in the search. It is undisputed that the search was not a probationary search, but was instead an investigatory search by law enforcement related to new crimes.
Short sought to suppress all evidence obtained as a result of the search. In his brief to the trial court, Short claimed he had a constitutionally protected expectation of privacy in the apartment; his probation agreement did not give officers unfettered access to search; the altered search warrant violated Iowa Code section 808.3 (2011), which requires that search warrant applications be in writing; and the statements and evidence gathered during the search should be suppressed as fruit of an illegal search. The State raised a number of issues in its resistance, including claiming that the search warrant was valid even after altered, that exigent circumstances were present to support the search, and that the waiver in Short’s probation agreement authorized law enforcement personnel to search the apartment without a warrant. In its brief, however, the State solely argued that the search was lawful based on reasonable suspicion that Short was involved in the crime.
The district court entered a detailed ruling. It found that the application for the original warrant was not tainted, but that the description of the place to be searched in the original warrant was inadequate. In so ruling, the district court noted that the warrant described a single story house with a garage stall and not a two story house divided into apartment units with a parking lot in back rather than garage stalls. The description in the altered warrant cured some of the problems, according to the district court, but it held that the telephonic authorization to alter the warrant was contrary to Iowa Code section 808.3. The district court further found that no exigent circumstances existed to support an exception to the warrant requirement. On the issue of whether a warrantless search of a probationer could be upheld in this case, however, the district court held in favor of the State. The district court reasoned that the officers had reasonable suspicion to believe that stolen property would be located at the residence, but that in order to be valid, the search must have been within the contemplation of the probation agreement. As a result of the ruling, the evidence obtained during the search was admitted into evidence and Short was convicted.
Short appealed. We transferred the matter to the court of appeals. The court of appeals held that the claim under article I, section 8 of the Iowa Constitution was adequately preserved in the district court. On the merits the court found that the search of a probationer based upon reasonable suspicion of criminal activity and based upon the limited scope of the search was valid under article I, section 8 of the Iowa Constitution.
II. Standard of Review.
Claims that the district court failed to suppress evidence obtained in violation of the Federal and Iowa Constitutions are reviewed de novo. State v. Dewitt,
III. Discussion.
A. Positions of the Parties.
1. Short. Short challenges the denial of the motion to suppress on appeal. Short first asserts that he had a constitutionally protected interest in the apartment, the district court correctly determined that the original search warrant lacked specificity, the district court correctly determined that the alteration to the warrant pursuant to telephonic authorization was invalid, and there were no exigent circumstances to support a warrantless search.
After addressing these issues, Short focuses on the fighting issue in this case, namely, whether the warrantless search of a probationer’s home by law enforcement officers violates article I, section 8 of the Iowa Constitution. Short claims that in State v. Ochoa we emphasized the property rights underpinning the sanctity of the home and highlighted that our cases underscore the high importance of a warrant issued by a neutral and detached magistrate when a home search was involved.
Short further relies on State v. Cullison,
Short maintains that the state constitutional issue was adequately preserved in the district court. In any event, Short argues that if the issue was not preserved under the Iowa Constitution, his counsel was ineffective for not raising the issue. See Taylor v. State,
2. The State. The State contends that Short did not preserve his argument below under the Iowa Constitution. It argues that Short did not argue that the Iowa Constitution should be interpreted differently from the Fourth Amendment before the district court, and suggests that the district court’s citation of Ochoa should not be construed to mean that the Iowa Constitution was duly raised.
The State’s sole argument on the merits of the appeal is that because the search of a probationer was supported by reasonable suspicion, the search was constitutionally valid. In support of its argument, the State cites Griffin v. Wisconsin, 483 U.S.
The State recognizes that in Ochoa, we departed from the interpretations of the United States Supreme Court. See
IV. Issue Preservation.
We first begin our discussion of issue preservation with a review of what issues were not presented by the State in this appeal. The State did not advance an argument that the warrant originally obtained was not defective, that the alteration of the warrant did not violate the requirement of Iowa Code section 808.3, or that exigent circumstances existed to justify a warrantless search. We need not consider the extent to which these arguments may have had merit, as under our rules and our precedents they have been waived in this appeal. See Iowa R.App. P. 6.903(2)(g )(3) (requiring appellant to present arguments and supportive authority in appeal brief and stating “[fjailure to cite authority in support of an issue may be deemed waiver of that issue”); State v. Seering,
Further, although the district court cited Short’s argument that his probation agreement did not give law enforcement officers unfettered access to conduct a search, the district court specifically only found that “the police had the right to search Short’s residence under the terms of his probation” and therefore, “the search was not unlawful.” The district court made no finding or holding regarding whether the probation agreement itself constituted valid consent. Cf. Knights,
in the absence of the most cogent circumstances, we do not create issues or unnecessarily overturn existing law sua sponte when the parties have not advocated for such a change.... [W]e are restrained to apply the controlling law as advocated by the parties....
(Citation omitted.) It is important that our waiver rules be consistently applied in all cases and that we not apply special rules for certain parties without a principled basis for doing so.
We now turn to issue preservation questions related to Short’s claims. The State suggests that the constitutionality of the search under article I, section 8 of the Iowa Constitution was not presented to the district court. In his motion to suppress, however, Short specifically cited article I, section 8 of the Iowa Constitution as the basis for his argument that the search was invalid because there was no effective warrant. Further, the district court appears to have recognized the state constitutional argument in its opinion when it extensively discussed Ochoa, a case solely involving article I, section 8 of the Iowa Constitu
Y. Warrantless Searches of the Homes of Probationers by Law Enforcement Officers.
A. Introduction. The larger question of whether law enforcement officers may search a probationer’s home without a valid warrant under the facts of this case depends upon resolution of two subsidiary questions. The first question is whether a warrantless search of a probationer’s home is permissible when, as here, reasonable suspicion of criminal activity is present. If the answer to this question is yes, a second question emerges — namely, whether law enforcement officers, as distinguished from probation officers, may conduct the search.
In considering these issues under article I, section 8 of the Iowa Constitution, we reach our decisions independently of federal constitutional analysis. We may, of course, consider the persuasiveness of federal precedent, but we are by no means bound by it. See Ochoa,
B. Established Principles of Independent State Constitutional Law.
1. Introduction. Neither party has questioned or sought to limit our responsibility to independently construe the Iowa Constitution. Neither party, for example, has suggested on appeal that this court’s approach to independent state law as outlined in Ochoa, Pals, or Baldon is incorrect or should be modified. Our approach to reviewing independent state constitutional claims was thoroughly explored in Baldon, Pals, and Ochoa. See Baldon,
2. States’ constitutions as the original protectors of individual rights; the Federal Constitution as the follower of state tradition. At the outset, we note that state constitutions and not the Federal Constitution were the original sources of written constitutional rights. See Baldon,
At the federal constitutional convention, whenever the issue of individual rights arose, the founders repeatedly expressed the view that they looked to the states for the preservation of individual rights. James Wilson declared that the purpose of the states was “ ‘to preserve the rights of individuals.’ ” Baldon,
Given the primary role of the states in developing individual rights, it is not surprising that, “prior to the adoption of the federal Constitution, each of the rights eventually recognized in the federal Bill of Rights had previously been protected in one or more state constitutions.” William J. Brennan Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 501 (1977). As noted by a leading scholar in the area, there is now an emerging consensus that the Federal Bill of Rights originated in state and colonial rights guarantees. See Robert F. Williams, The State Constitutions of the Founding Decade: Pennsylvania’s Radical 1776 Constitution and Its Influences on American Constitutionalism, 62 Temp. L.Rev. 541, 541 (1989) (“Constitutional scholars have long recognized that many of the features of the United States Constitution were modeled on the earlier state constitutions.”). The provisions of the Bill of Rights, including the Fourth Amendment, were modeled by state constitutional provisions and not vice versa as is commonly assumed. See Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition.?, 85 S. Cal. L.Rev. 1451, 1452-53 (2012) (noting that rights in the Federal Bill of Rights emerge from state and colonial bills of rights).
3. Strong emphasis on individual rights under the Iowa Constitution. The bill of rights in the Iowa Constitution was not considered by Iowa constitutional writers as some kind of appendage controlled by federal court interpretations. Unlike the Federal Constitution, the bill of rights was part of the first articles of the Iowa Constitutions of 1846 and 1857.
Indeed, there is powerful evidence that the Iowa constitutional generation did not believe that Iowa law should simply mirror federal court interpretations. While the due process clause of article I, section 9 of the Iowa Constitution was similar to the Due Process Clause of the United States Constitution, Ells noted that the clause was “violated again and again by the dominant party in the land, which rides roughshod ove[r] the necks of freemen.” The Debates at 102. Further, Ells noted that
[i]f the words ‘due process of law,’ shall in time be recognized by our judicial tribunals to mean what they really do mean ... [t]hen, sir, that infamous Fugitive Slave Law will become a nu[l]lity, and the American people will trample its odious enactments in the dust.
Id. Of course, during this time period the United States Supreme Court upheld the Fugitive Slave Law from constitutional attack. See, e.g., Ableman v. Booth,
As has often been celebrated, the first decision of the Supreme Court of the Territory of Iowa, In re Ralph, rejected the claim that a slave present in a free state should be returned to his master, noting that under Iowa law a slave within the free territory of Iowa is not “property” and that the laws regarding illegal restraint apply “to men of all colors and conditions.”
The Iowa court held for Ralph. Id. at 7. In closing, however, the court emphasized that when a person “illegally restrains a human being of his liberty, it is proper that the laws, which should extend equal protection to men of all colors and conditions, should exert their remedial interposition.” Id. The decision in In re Ralph flatly contradicted the infamous Dred Scott decision of the United States Supreme Court in 1857. See Dred Scott v. Sanford,
“While Dred Scott was decided after the Iowa Constitutional Convention of 1857 adjourned, the first state legislature convened under the new Iowa Constitution expressed its view on the Dred Scott decision and its reasoning. The Iowa legislature declared in a resolution that “the case of Dred Scott, is not binding in law or conscience upon the government or people of the United States,” and that
we should be ungrateful to those whose care and foresight provided for us free homes, and derelict in our duty to those who still come after us, did we not promptly and sternly denounce this new doctrine, which if established, degrades the free states.
1858 Iowa Acts Res. 12, at 433. We have not found a record of the debate on the resolution, but there is little doubt that an argument that Iowa courts should defer to Dred Scott in the interpretation of the Iowa Constitution as presumptively valid would not have received a favorable reception.
The independent authority of state courts to construe state constitutional provisions free from federal precedent was early recognized in McClure v. Owen,
The same principles that require the federal courts to follow the decisions of the State courts in construing statutes, and to recognize rules of local law, require the federal courts to follow the construction given the [state] Constitution by the highest state tribunal.
Id. at 255. As is often celebrated, our subsequent cases dealing with the rights of African Americans adopted an approach much different than the United States Supreme Court ultimately adopted in Plessy v. Ferguson,
4. The diminution in substance of federal rights resulting from incorporation triggers renewal of independent state constitutional law. Beginning with Gitlow v. New York, the United States Supreme Court began to incorporate against the states various provisions of the Bill of Rights under the Due Process Clause of the Fourteenth Amendment.
In a series of opinions, Justice Harlan presciently predicted that one of the unintended consequences of the extension of federal constitutional rights to the states would be their dilution. Williams v. Florida,
We have seen the federalism discount predicted by Justice Harlan operate with full force in the search and seizure context. Since incorporation, the relatively clear requirements of the Warrant Clause have been overridden by vague notions of reasonableness, the role of consent has changed from its narrow beginnings to a more protean formulation, and the exclusionary rule has been substantially eroded
by a good faith exception. See California v. Acevedo,
As a result of the United States Supreme Court’s retreat in the search and seizure area, there has been a sizeable growth in independent state constitutional law. A survey of jurisdictions in 2007 found that a majority of the state supreme courts have departed from United States Supreme Court precedents in the search and seizure area to some degree. See generally Michael J. Gorman, Survey: State Search and Seizure Analogs, 77 Miss. L. J. 417 (2007). There are now hundreds of independent state constitutional search and seizure cases, and the number grows over time. Because of the tendency of the United States Supreme Court to underenforce or dilute search and seizure principles, it can be argued that these precedents are “entitled to less weight than other state decisions interpreting similar state constitutional law provisions.” Williams at 137; cf. State v. Black,
The growth of independent state constitutional law, however, has not been universally celebrated. As Professor Williams has bemoaned, adoption of independent state constitutional law has occasionally provoked what Williams has called a “bitter, accusatorial” dissent. Williams at 180 (citing People v. Scott,
5. The aggressive, maximalist character of lockstep approach as “precommitment device” preventing independent examination of facts and law. One question is whether state courts should engage in
The notion that parallel language in the Iowa Constitution is not tied to United States Supreme Court interpretations in the search and seizure area was powerfully endorsed by Judge Sutton of the United States Court of Appeals for the Sixth Circuit, who wrote in a published article:
There is no reason to think, as an interpretive matter, that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed the same. Still less is there reason to think that a highly generalized guarantee, such as prohibition on “unreasonable” searches, would have just one meaning for a range of differently situated sovereigns.
Jeffrey S. Sutton, What Does — and Does Not—Ail State Constitutional Law, 59 U. Kan. L.Rev. 687, 707 (2011). Judge Sutton further asks why we should live in a “top-down constitutional world,” when allowing states to decide whether to embrace or accept innovative legal claims can inform the United States Supreme Court when considering whether to federalize the rule. Id. at 712-13 (internal quotation marks omitted).
Indeed, according to Professor Williams, lockstepping state law to federal precedents is not a humble or minimalist approach, but is an aggressive and maximalist approach to the law. See Williams at 224-29 (discussing several problems to the lockstepping approach). It amounts to what Professor Adrian Vermeule refers to as a “precommitment device” that prevents a state supreme court from considering each case based on an independent examination of facts and law. See Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 2000 Sup.Ct. Rev. 357, 366 (2000).
6. The double irony in the appeal to uniformity. The independent state law cases also address the question of the value of uniformity. First, it is doubtful that uniformity is a constitutional value in a federal system. Indeed, diversity of constitutional analysis is baked into the constitutional cake where states retain sovereign authority over questions not delegated to the federal government by the United States Constitution. As noted by Professor Williams, reliance on decisions of the United States Supreme Court to interpret state constitutional provisions is “misplaced” and an “unwarranted delegation of state power to the Supreme Court.” Robert F. Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L.Rev. 353, 403-04 (1984). In an era when societies advocate renewal of federalism by returning power to the state, it is ironic that an exception is made for state judicial power.
If these authorities are only half right, incorporation of the body of federal law under the Iowa Constitution will incorporate confusion, not certainty. Cf. State v. Caraher,
7. The burdens on law enforcement and lawyers. The lack of uniformity does not create a substantial burden on professional law enforcement who now receive professional training and are assisted by well-educated county attorneys in their law enforcement functions. Further, law enforcement officers need to be acquainted only with one standard, namely, whatever standard is most restrictive. See 1 Fries-en § 1.03[4][b], at 1-15. There is simply no reason to believe that Iowa law enforcement is less capable than its counterparts in states such as New York, New Jersey, Washington, or Oregon, where independent state constitutional law has been embraced by the state courts. See Baldón,
It could be asserted that independent state constitutional law creates a burden for lawyers. For instance, teaching opinions written decades ago suggesting that lawyers might commit malpractice by failing to pursue state constitutional theories may provoke criticism. See, e.g., State v. Lowry,
The work required to be a “competent and effective” lawyer as envisioned by the Conference of Chief Justices is not overwhelming. As noted by Jennifer Friesen in her important treatise on state constitutional law, lawyers may find cases rejecting federal precedents by simply checking relevant citations. See 2 Friesen § 11.01 n. 5, at 11-4. In addition to readily searchable caselaw, there is now a very large volume of readily accessible secondary materials discussing just about every aspect of state constitutional law. A diligent lawyer thus has ready access to the
8. “Criteria” as a solution in search of a problem. The independent state constitutional cases also address the issue of whether there should be some kind of “criteria” before a state court engages in independent legal analysis. As Professor Williams has pointed out, “[t]he often unstated premise that U.S. Supreme court interpretations of the federal Bill of Rights are presumptively correct for interpreting analogous state provisions is simply wrong.” Williams at 135. Williams notes that John Paul Stevens referred to the “misplaced sense of duty” which occurs when a state court believes the boundaries of its state constitution are marked by the Supreme Court in its interpretation of the Federal Constitution. See id. at 170 (citing Delaware v. Van Arsdall,
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.
State v. Tiedemann,
While it has been observed that “[c]itation to a federal opinion ... too often serves as a substitute for the considered reasoning that should accompany a particular interpretation of a state’s constitution,” Lawrence Friedman & Charles H. Baron, Baker v. State and the Promise of the New Judicial Federalism, 43 B.C. L.Rev. 125, 127 (2001), our independent authority to construe the Iowa Constitution does not mean that we generally refuse to follow the United States Supreme Court decisions. For example, in State v. Breuer, we rejected the approach of another state court that required the physical presence of a warrant at the location of a judicially authorized search or seizure.
In addition to arising from a substantively flawed premise, criteria approaches further have the potential to complicate and distort the nature of judicial decisions by encouraging elaborate discussion on the nature of the arcane criteria itself rather than the broad values underlying the constitutional provision. Cf. Williams at 162, 167-68. As a result, one of the states that first developed a criteria approach, Washington, has now emphasized that the criteria are only “nonexclusive.” Sofie v. Fi-breboard Corp.,
9. Limitations of advocacy and preservation. Notwithstanding the development of independent state constitutional law, in many cases lawyers do not advocate an Iowa constitutional standard different from the generally accepted federal standard. As a matter of prudence, we have adopted the approach in these cases that we will utilize the general standard urged by the parties, but reserve the right to apply the standard in a fashion different than the federal caselaw. See Baldon,
In some cases, we have vindicated claims based on search and seizure violations under the United States Constitution and not the Iowa Constitution. See State v. Kooima,
10. Reaffirmation and application of precedents to Iowa constitutional issue presented in this case. Our recent cases of Cline, Ochoa, Pals, Baldón, and the special concurrence in Edouard outline our approach to independent state constitutional law under article I, section 8 of the Iowa Constitution as summarized above. Today, we again reaffirm these principles. To the extent our cases can be read as having implications contrary to the above approach, they are specifically overruled.
Turning now to the question before us, the Iowa constitutional precedent under article I, section 8 on the question of whether a warrant is required before law enforcement may search a person’s home based on the person’s status is Cullison. See
C. Pre-Cullison Caselaw. Prior to our decision in Cullison, the caselaw regarding whether a warrant was required before searching the home of a probationer or parolee was inconclusive. Some cases from other jurisdictions held that a probationer or parolee had lesser constitutional rights than citizens generally. See U.S. ex rel. Randazzo v. Follette,
At about the time of Cullison, however, there were two prominent features of search and seizure law in both the federal
[T]he most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval of a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions. The exceptions are jealously and narrowly drawn, and there must be a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.
Id. (footnotes omitted) (internal quotation marks omitted).
Second, the cases emphasized the importance of the sanctity of the home in search and seizure jurisprudence. For instance, in United States v. United States District Court, the Supreme Court summarized the state of the law by noting that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”
In Agnello v. United States, the two concepts of the warrant requirement and the importance of the home merged.
[b]elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.
Id. at 33,
In addition, many years ago, we stated that the protections in search and seizure law were to be given “a broad and liberal interpretation for the purpose of preserving ... liberty.” State v. Height,
D. Overview of State v. Cullison. We have not specifically confronted the
In doing so, we first canvassed the then-existing federal and state caselaw involving rulings under the Fourth Amendment. Id. at 535-36. We noted that the caselaw generally divided into two camps: those courts that either “[s]trip” or “[djilute” a parolee of Fourth Amendment rights and those that afford full validity and recognition of these rights to parolees. Id. at 536.
In Cullison, we strongly disapproved of the strip and dilute cases. See id. We stated that the strip and dilute cases were based upon “what may best be described as a socio-juristic rationalization, i.e., protection of the public and constructive custody” and were not “constitutionally sound, reasonable, fair or necessary.” Id. We stated that the “dilution theory begins and ends nowhere, being at best illusory and evasive.” Id. We quoted with approval a statement in Hernandez, where the court declared that the notion that parolees lose their constitutional rights by accepting parole “makes constitutional rights dependent upon a kind of ‘contract’ in which one side has all the bargaining power” and that “[a] better doctrine is that the state may not attach unconstitutional conditions to the grant of state privileges.” Id. at 536-37 (quoting Hernandez,
We then turned to the Iowa Constitution. Id. at 537. We noted that article II, section 5 of the Iowa Constitution provides that no “ ‘person convicted of any infamous crime, shall be entitled to the privileges of an elector.’ ” Id. (quoting Iowa Const, art. II, § 5). We recognized that the plain language of article II, section 5 meant that, upon conviction of an infamous offense, the defendant lost his right to vote or hold public office. Id. We then declared: “And certainly, with the exception of lawful conditions governing conduct while on parole or probation, no more onerous burden could be cast upon him by any subsequent conditional release from a penal institution.” Id. at 537-38 (emphasis added). We further noted that “the fact that a criminal accused is also a parolee should not, as to a new and separate crime, destroy or diminish constitutional safeguards afforded all people.” Id. at 538 (emphasis added).
There can be no question that Cullison involves a holding under the Iowa Constitution. The briefing before the Cullison court reveals that the petitioner emphasized article I, section 8 of the Iowa Constitution. According to the appellant’s brief in Cullison, the “Law applicable to this area is found in Iowa Constitution, Art. I, Sec. 8.” Defendant’s Brief at 20. The appellant further argued that “[u]nlike the U.S. Constitution, the Iowa Constitution specifically spells out the result or penalty of felony conviction as far as diminution of constitutional rights are concerned, in ... Article II, Sec. 5.” Id. at 21. Although it is true that the Cullison opinion does not expressly refer to article I, section 8, the Cullison court adopted the appellant’s analysis that article II, section 5 of the Iowa Constitution provides the only sanctions for persons convicted of a
Though brief, the language in Cullison is exceptionally strong and unequivocal. It represents a clear precedent drawing a bright line regarding searches of the home. “[SJoeio-jurisidic” rationales to evade the warrant requirement were unacceptable; the “dilution” theory was “illusory.” See Cullison,
One dissent in Cullison focused on the fact that the search was conducted by a parole officer, and not a law enforcement officer. See id. at 541 (Larson, J., dissenting) (framing the initial question as whether the parole agent or assisting officer can seize stolen property and considering the purposes of the parole system). The dissent believed that a search by a parole officer qualified as one of the exceptions to the warrant requirement. Id. at 543-44 (concluding a parolee has a special status under search and seizure law). The second dissent further emphasized that “[a]n unlawful warrantless search by peace officers does not become legal because they are accompanied by a parole officer.” Id. at 545 (Stuart, J., dissenting). In short, even under the dissents in Cullison, the search in this case by a police officer, and not by a probation officer, would have been invalid.
The holding in Cullison, giving maximum constitutional protection to the home, was consistent with existing federal and state caselaw. See, e.g., Boyd v. United States,
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his*496 force dares not cross the threshold of the ruined tenement[.]”
See, e.g., Miller v. United States,
Our caselaw contains similar language. As we emphasized in MeClurg v. Brenton:
The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidences of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of such warrant. At the closed door of the home, be it palace or hovel, even bloodhounds must wait till the law, by authorr itative process, bids it open.
Cullison stands for the proposition that the protective arm of article I, section 8 “extends to all alike, worthy and unworthy, without distinction.” State v. Gansz,
Rights intended to protect all must be extended to all, lest they so fall into desuetude in the course of denying them to the worst of men as to afford no aid to the best of men in time of need.
Goldman v. United States,
E. Post-Cullison Caselaw. After Cullison, a number of other state courts and federal courts considered this question under the Federal Constitution or state constitutions. Some agreed with our approach in Cullison. For instance, in United States v. Rea, the Court of Appeals for the Second Circuit came to the conclusion that a probation officer is required to obtain a warrant prior to conducting a search of the probationer’s home unless the search fell within one of the judicially recognized exceptions to the warrant requirement.
For many years, the United States Supreme Court in a number of cases has expressed a strong reliance on the Warrant Clause in the Fourth Amendment. What has been called the “warrant preference approach” was closely associated with Justice Felix Frankfurter and Justice Potter Stewart. See generally William W. Greenhalgh & Mark J. Yost, In Defense of the ‘Per Se” Rule: Justice Stewart’s Struggle to Preserve the Fourth Amendment’s Warrant Clause, 31 Am.Crim. L.Rev. 1013 (1994). Under the warrant preference approach, a warrant was generally required, particularly for a home search, except under narrowly defined circumstances, such as searches incident to arrest, or where exigent circumstances make it impossible to obtain a warrant. See id. at 1016-17 (“[A] search is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement.”). In recent decades, however, the United States Supreme Court has embarked on a series of innovations and reen-gineerings of established Fourth Amendment law that has tended to minimize the role of warrants and emphasize the role of the Reasonableness Clause. See id. at 1084 (“This [ideological] shift has resulted at times in an outright hostility to the ‘per se’ rule in favor of the more flexible standard of ‘reasonableness.’ ”). The newly fashioned Fourth Amendment doctrine provides a framework for the United States Supreme Court to avoid the warrant requirement whenever a majority of the Court determines that it is “reasonable” to do so. See id. (“The Court’s enthusiasm to embrace the flexible ‘reasonableness’ approach is most noticeable in the numerical score: of the fifty-five Fourth Amendment decisions since 1982, the Court has found only twelve searches that violated the Fourth Amendment .... Even more telling, the Court has relied upon the ‘per se’ rule as the framework for resolving only nineteen of those fifty-five Fourth Amendment cases.”). As a result, the warrant requirement under existing United States Supreme Court precedent offers less protection for citizens against arbitrary government intrusions than it did fifty years ago. See id. at 1091 (recognizing the balancing approach has undermined the per se warrant requirement).
The reengineering of Fourth Amendment law is illustrated by the highly divided opinion in Griffin. In Griffin, a five-member majority of the United States Supreme Court concluded that a warrantless search of a probationer’s home by probation officers pursuant to a Wisconsin regulation was “reasonable” under the Fourth Amendment. Griffin,
In its analysis, the Griffin majority emphasized the difference between a probation officer and general law enforcement conducting the search. See id. at 879-80,
The Griffin majority thus moved the search and seizure goalposts twice: first by announcing that, in some instances, a warrant was no longer required for a home search, and second, that a warrantless search could be supported by less than traditional probable cause. See id. at 873-80,
Seemingly recognizing the potential instability of its “reasonableness” approach, the Griffin majority drew a firm line between a search by a probation officer and a search by a general law enforcement officer. See id. at 879-80,
Writing for three members of the Court, Justice Blackmun wrote:
I do not think ... that special law enforcement needs justify a modification of the protection afforded a probationer’s privacy by the warrant requirement. The search in this case was conducted in petitioner’s home, the place that traditionally has been regarded as the center of a person’s private life, the bastion in which one has a legitimate expectation of privacy protected by the Fourth Amendment.
Id. at 883,
Justice Stevens, joined by Justice Marshall, was even more pointed:
Mere speculation by a police officer that a probationer “may have had” contraband in his possession is not a constitutionally sufficient basis for a warrant-less, nonconsensual search of a private home. I simply do not understand how five Members of this Court can reach a contrary conclusion.
Id. at 890,
The United States Supreme Court revisited the general area of search and seizure rights of probationers in Knights. In Knights, the search was conducted by a police officer, not by probation officers as in Griffin.
While Griffin announced the limiting principle that warrantless home searches were permissible if conducted by a probation officer pursuant to ordinary supervisory activities,
Finally, the Supreme Court considered Samson v. California, a case addressing the warrantless search of a parolee.
Justice Stevens dissented, writing that the majority’s decision embraced “a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, [and] by law enforcement personnel who have no special interest in the welfare of the parolee or probationer.” Id. at 857,
Notwithstanding the Supreme Court’s approach in Griffin, Knights, and Samson, we have not revisited the holding in Culli-son. In Ochoa, we rejected the eviscerating innovation of the Supreme Court in Samson. See Ochoa,
In Ochoa, the State, with honesty and integrity, declined to claim that the search was supported by reasonable suspicion. See id. at 262-64. As a result, it was not necessary for the Ochoa court to consider whether Griffin or Knights was good law or to reconsider Cullison. See id. at 287 (noting the court could simply affirm Culli-son, but it was not necessary to address the warrant and probable cause requirements when the search was invalid under a reasonableness analysis). It was enough for one day’s work, to simply reject the doctrine of Samson under article I, section 8 of the Iowa Constitution.
In the case before us today, however, there is no question that law enforcement authorities had reasonable suspicion to search Short’s home. The State’s sole claim on appeal is that reasonable suspicion is enough, case closed. Thus, the issue on appeal is squarely presented: is Cullison good law? Or, do we accept instruction from the United States Supreme Court and engage in an innovative reconfiguration of traditional search and seizure law under the Iowa Constitution?
F. Analysis: Should Cullison Be Overruled? The question before us now is whether we should overrule Culli-son. Of course, stare decisis is a factor to consider. At the same time, we recognize that stare decisis is not always determinative. See State v. Bruce,
We begin with a textual look at article I, section 8 of the Iowa Constitution, which provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
Iowa Const, art. I, § 8. The text is, of course, nearly identical to the Fourth Amendment to the United States Constitution, which was, in turn, largely modeled after the Massachusetts Constitution of
But textualists will also note that unlike accepted versions of the Fourth Amendment, article I, section 8 utilizes a semicolon between the reasonableness clause and the warrant clause. As pointed out in Ochoa, a semicolon ordinarily is used to show that the language that follows the semicolon illustrates the basic principle, namely, that in order to avoid being declared “unreasonable” or unlawful, under article I, section 8, a warrant is ordinarily required. See
Indeed, the notion that in order for a search to be reasonable, it must be pursuant to a warrant has considerable historical support. James Otis, in his brief in Paxton’s Case, asserted that only specific warrants were reasonable and that “ ‘the freedom of one’s house’ was among ‘the most essential branches of English liberty.’ ” Cuddihy at 377-78 (citation omitted). Similarly, shortly before Iowa obtained statehood, a state court held that in order for a search to be reasonable, it had to be executed pursuant to a warrant. See Banks v. Farwell,
There are also structural reasons for defending the warrant requirement. As we indicated in Ochoa, an interpretation that focuses on the reasonableness clause as the touchstone of search and seizure law sets up the intellectual machinery to engulf the warrant clause and make its mandatory provision ephemeral. See
Indeed, rejection of this kind of slippery reasoning was at the very heart of Culli-son, which declared that socio-jurisdic requirements to evade the constitutional command of the need for a search warrant were unacceptable.
It is of course true that in this case, law enforcement officers had reasonable suspicion, at least as established at the hearing on the motion to suppress. Short does not suggest otherwise. A requirement of individualized suspicion, as indicated in Ochoa, can be an important factor in preventing arbitrary searches and seizures by law enforcement, and our refusal to accept the Samson approach under article I, section 8 of the Iowa Constitution was an important development in our law.
It is tempting, perhaps, to say that in this case, where the record shows that law enforcement had good reason to conduct the search, that the constitutional requirements have been satisfied. But article I, section 8 does not speak solely in terms of probable cause. Irrevocably welded into article I, section 8 are requirements that a warrant be issued by a neutral magistrate that limits the scope of the search both with respect to places to be searched and items to be seized. The warrant and particularity requirements of article I, section 8 are not weak siblings of the probable cause requirement. By requiring approval of a neutral magistrate and a description with particularity, important constitutional values are promoted. By involving a neutral magistrate, the warrant requirement ensures that probable cause is evaluated not by overzealous law enforcement officers. The traditional view has been that “ ‘the procedure of antecedent justification ... is central to the Fourth Amendment.’ ” See Katz,
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable [people] draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes*503 secure only in the discretion of police officers.
In addition, the particularity requirement limits the scope of the search, which is often as important to the protection of constitutional rights as the authorization of the search itself. As noted in Arkansas v. Sanders:
In the ordinary case ... a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant [requirement] ....
Our recognition of the importance of all of the requirements of the warrant clause is demonstrated in Cline. See
Even if we were inclined to fuzzy up the warrant requirement, a home invasion by law enforcement officers is the last place we would begin the process.. The canard that a person’s home is their castle has always been subject to some limitations, but the basic principle remains a sound one. We are not talking about a routine encounter at airport security where the announced and understood purpose of the examination is safety of passengers unrelated to the goals of general law enforcement, or an investigative stop on the street where a quick pat down is conducted to ensure the safety of police officers, or an exigent circumstance where the acquisition of a warrant was simply not possible. Here, police officers are penetrating a home, the place of final refuge, the focal point of intimate relationships, and what is constitutionally, thought of as a place of safety, security, and repose. Of course, no one says such an invasion can never occur, but only that a warrant, supported by probable .cause, describing the place to be
Sometimes, eviscerations of constitutional protections are based upon claims that a probationer has a lesser expectation of privacy. Such reasoning is generally based upon a misreading of Justice Harlan’s concurring opinion in Katz. See
We further note that the requirements imposed by article I, section 8 and enforced by us, namely, that a warrant is required for an unconsented search of the home, even of a parolee or probationer, is not terribly onerous. Indeed, the balancing of interests between the individual and law enforcement has already occurred in article I, section 8 in the probable cause requirement. As we have noted in the past:
The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating ... opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officer’s whim or caprice.
That leaves the additional constitutional requirements of obtaining a warrant from a neutral magistrate describing the place to be searched and the things to be sought with particularity. Whatever else may have been true in the past, obtaining a warrant from a judicial officer is not particularly onerous. As was noted by a leading commentator almost twenty years ago, there is now no reason why warrants cannot be obtained twenty-four hours a day using modern technologies. Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L.Rev. 1468, 1492-93 (1985).
The factual assertion in Griffin that it was impracticable for a probation officer to obtain a warrant was wrong then and it is even more wrong today. See Howard P. Schneiderman, Conflicting Perspectives from the Bench and the Field on Probationer Home Searches — Griffin v. Wisconsin Reconsidered, 1989 Wise. L.Rev. 607, 664 (1989) (noting survey results demonstrating that a warrant requirement would not unduly burden Wisconsin probation department). And, the impracticable assertion has even less validity in the context of a search by law enforcement. As demonstrated by this case, the problem was not that it was impractical to obtain a warrant. It was very practical to obtain a warrant. The problem was that the warrant actually obtained was invalid and the State failed, through an apparent misunderstanding of the law, to properly obtain a new warrant. In this case, a valid, amended warrant could have been acquired with only modest additional effort by law enforcement.
In addition, we do not address the validity of home visits and other measures utilized by probation or parole officers as part of their ordinary duties. Although Cullison plainly indicates that even a search by a parole officer may give rise to a violation of article I, section 8,
It is an undeniable fact that in search and seizure cases, the people who bring the cases are generally those “whose unlawfully searched premises contained actual evidence of the actual crime they actually committed.” Frederick Schauer, The Heroes of the First Amendment, 101 Mich. L.Rev. 2118, 2118 (2003). But the law must be that a search of a home “is not to be made legal by what it turns up. In law, it is good or bad when it starts and does not change character from its success.” United States v. Di Re,
As noted by Justice Frankfurter many years ago, “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz,
We also pause to reflect on the observation in Kopfv. Skyrm:
But Casella was a criminal. He deserved to be arrested and punished; his story stirs little sympathy, much less outrage, in the crowd. The courts cannot be so impassive. We must always remember that unreasonable searches and seizures helped drive our forefathers to revolution. One who would defend [search and seizure law] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply.
For the above reasons, we think Cullison remains good law. We decline to overrule it.
VI. Conclusion.
More than forty years ago in Cullison, this court held that under the search and seizure provision of article I, section 8 of the Iowa Constitution, a valid warrant is required for law enforcement’s search of a parolee’s home. In this case, the State does not claim there was a valid warrant. In the subsequent decades, the United States Supreme Court has moved away from its reliance on warrants toward and emphasis on standalone reasonability in its interpretation of the search and seizure provisions of the Fourth Amendment. We decline to adopt this innovative reasoning. We find Cullison remains good law and decline to disturb it. As a result, the search by general law enforcement authorities of the home in this case was unlawful under article I, section 8 of the Iowa Constitution. We conclude the district court erred in denying the motion to suppress.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
Notes
. In its brief, the State contends that Short “acknowledged his ‘significantly diminished’ expectation of privacy by signing [the] probation agreement,” which included a "condition” that Short would " ‘submit [his] person ... [and] place of residence ... to search at any time, with or without a search warrant ... by any ... law enforcement officer having reasonable grounds to believe contraband is present.' ”
. For instance, a leading treatise explains the majority view is that consent provisions apply only to searches by parole or probation officers and not to searches by police officers, but also cites cases to the contrary. William E. Ringle, Searches and Seizures, Arrests and Confessions § 17:8 & n. 31, at 17-32 (2d ed.2004). At least two cases hold that search provisions in probation conditions are coerced and cannot be enforced. See People v. Peterson,
.No party, for instance, asks us to revisit Racing Ass’n of Central Iowa v. Fitzgerald,
. We will refer to the Iowa Constitution of 1857 as the Iowa Constitution.
. As explained by Shambaugh, the bill of rights set forth in the Constitution of the Territory of Iowa was "exceedingly brief” and consisted solely of incorporation of the rights, privileges, and immunities granted to the Territory of Wisconsin. See Benjamin F. Sham-baugh, The History of the Constitutions of Iowa 116 (1902). The Constitution of the Territory of Wisconsin, in turn, incorporated the provisions of the Northwest Ordinance of 1787, which contained a bill of rights. Id. at 116-17. As a result, "the provisions of the Ordinance of 1787 are by implication made part of the Constitution of the Territory of Iowa.” Id. at 117-18.
. Other commentators have expressed similar criticism of Federal Fourth Amendment jurisprudence. See, e.g., Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 St. John’s L.Rev. 1149, 1149 (1998) (“a mess"); Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L.Rev. 1468, 1468 (1985) (“a mass of contradictions and obscurities”); Thomas K. Clancy, The Fourth Amendment's Concept of Reasonableness, 2004 Utah L.Rev. 977, 978 (2004) ("irreconcilable”); Jennifer Friesen, State Courts as Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L.Rev. 1065, 1092 (1997) ("illogical and unwieldy”); Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L.Rev. 503, 504-05 (2007) ("remains remarkably opaque”); Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 787-88 (1999) ("more duct tape on the Amendment’s frame and a step closer to the junkyard”); Donald R.C. Pongrace, Stereotypification of the Fourth Amendment’s Public/Private Distinction: An Opportunity for Clarity, 34 Am. U.L.Rev. 1191, 1208 (1985) ("in a state of theoretical chaos”); Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L.Rev. 1511, 1511 (2010) ("riddled with inconsistency and incoherence”); David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U. Pa. J. Const. L. 581, 581 (2008) ("doctrinal incoherence of Fourth Amendment law” "disturbs many judges and scholars”); Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19, 29 (1988) ("inconsistent and bizarre results”); and Richard G. Wilkins, Defining the ''Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40 Vand. L.Rev. 1077, 1107 (1987) ("distressingly unmanageable”).
. For instance, many state courts, including Iowa, have on remand from a reversal by the United States Supreme Court on federal constitutional issues, followed their previous reasoning under the state constitution. See, e.g., Racing Ass’n of Cent. Iowa,
. This case, of course, involves a probationer and not a parolee. Even under the United States Supreme Court’s Fourth Amendment cases, however, a probationer has more protection from searches and seizures than does a parolee. See Samson v. California,
. We note, according to the Bureau of Justice Statistics, in 2012 there were 29,333 Iowans on probation. See Bureau of Justice Statistics, U.S. Department of Justice, NCJ243826, Probation and Parole in the United States, 2012, app. tbl. 2 (revised Apr. 22, 2014), available at www.bjs.gov/content/pub/pdf/ppusl2. pdf. The consequences of a contrary result in this case would be that the homes of those persons could be subject to warrantless searches by law enforcement.
Dissenting Opinion
(dissenting).
I respectfully dissent. I would follow the unanimous decision in United States v. Knights,
The majority neglects to mention that Short had a lengthy criminal record, including multiple felony convictions. He had served time in prison for robbery. On March 31, 2011, he pled guilty to his fourth theft-related offense and, in lieu of incarceration, received a generous sentence of probation on the condition that his residence could be searched without a warrant any time a law enforcement officer had reasonable grounds to believe contraband was present. Consent-to-search clauses have commonly been used in parole and probation agreements to deter misconduct and facilitate detection of wrongdoing. Less than two months later, while still on probation, Short committed the crime at issue in this case by burglarizing a home, taking two flat-screen televisions, jewelry, and a $100 gift card to Minerva’s Restaurant. He used the gift card there and signed the receipt. The waitress and manager later identified Short from a photograph. A magistrate found probable cause to search his residence and issued a search warrant, which all parties acknowledge was invalid due to an out-of-date address. The deputies, based on inaccurate advice during a phone call with the magistrate, wrote in the new address, executed the amended warrant, and found the stolen property at Short’s residence. The district court, following Knights, correctly upheld the search based on Short’s probation agreement and diminished expectations of privacy as a felon under supervision. I disagree with the majority’s conclusion that Short has the same expectations of privacy as ordinary Iowans. It is unfortunate the majority, as it did in Baldón, has again failed to enforce an offender’s consent-to-search provision, depriving our state’s corrections program of an important tool to encourage parolees and probationers to obey the law.
As in several other recent decisions erroneously decided by this majority, “[t]he validity of this consent search is solidly grounded on Fourth Amendment search and seizure caselaw, and there is no good reason to hold otherwise under article I, section 8 of the Iowa Constitution.” State v. Pals,
References to “the sanctity of the home” do not justify the majority’s departure from settled Fourth Amendment precedent.
The majority’s departure from settled Fourth Amendment caselaw inevitably leads to unpredictability, confusion, and instability in the law, with multiple sets of rules applying to the same conduct. In my view, we should return to our traditional practice of interpreting article I, section 8 of the Iowa Constitution to have the same meaning as the Fourth Amendment, as the framers of our state constitution intended. See Pals,
I dissent to fire another warning shot across the bow of the ship the majority steers in the wrong direction without a navigation system.
I. We Should Construe Article I, Section 8 of the Iowa Constitution to Have the Same Meaning as the Fourth Amendment.
The Fourth Amendment to the United States Constitution
This limited lockstep approach is not a surrender of state sovereignty or an abandonment of the judicial function. It is, instead, based on the premise that the drafters of the [state] constitution and the delegates to the constitutional convention intended the phrase “search and seizure” in the state document to mean, in general, what the same phrase means in the federal constitution.
People v. Caballes,
The timing of the adoption of the Iowa Constitution
Our court’s next retreat from Fourth Amendment precedent was State v. Ochoa,
In order to resolve any inconsistency in our prior' cases, we now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions. A Fourth Amendment opinion of the United States Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no more binding upon our interpretation of article I, section 8 of the Iowa Constitution than is a case decided by another state supreme court under a search and seizure provision of that state’s 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.
Id. at 267 (emphasis added). The Ochoa court’s chest-thumping assertion of judicial power marked a dramatic departure from our court’s long-standing adherence to settled Fourth Amendment precedent on the validity of searches. This new mindset metastasized into Pals,
It is indeed our court’s role to interpret the Iowa Constitution, but I part company with the majority’s stated willingness to impose greater restrictions on police and our legislature under the Iowa Constitution’s search and seizure provision merely by deeming the Supreme Court’s Fourth Amendment precedent unpersuasive.
A bare disagreement with the United States Supreme Court’s interpretation of the Federal Constitution “imparts no sound doctrinal basis to impose a contrary view under the pretext of separately interpreting our State Constitution. Our Constitution is more than just a device to reject or evade federal decisions. ...”
State v. Kottman,
The majority, citing two law professors, perjoratively labels our court’s long-standing practice of following Fourth Amendment precedent to be an “aggressive maxi-malist” approach and a “precommitment device preventing independent examination of the facts and law.” No court until now has used those labels to describe the approach followed by most state supreme courts. I doubt any of the justices of our court who retired before Ochoa, including jurists such as C. Edwin Moore, Clay Le-Grand, or Harvey Uhlenhopp, would have agreed those labels accurately describe their approach to search and seizure law. Stare decisis is a “precommitment device,” is it not?
The majority’s recent departures from our court’s numerous decisions following settled federal constitutional precedent undermine the predictability and stability of our law. Revisiting settled precedent whenever four justices of this court find prior cases “unpersuasive” leads to serious and troubling repercussions. Too many long-settled rules are put back into play. This subverts the goals served by the doctrine of stare decisis. A recent admonition by the Supreme Court is worth repeating.
[T]his Court does not overturn its precedents lightly. Stare decisis, we have stated, “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Although “not an inexorable command,” stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop “in a principled and intelligible fashion.” For that reason, this Court has always held that “any departure” from the doctrine “demands special justification.”
Michigan v. Bay Mills Indian Cmty., — U.S. -, -,
The majority injects further instability into our law through its mantra that our court “reserve[s] the right to apply the standard in a [different] fashion.” I am not sure what that means. Does this approach make predicting the law a guessing game?
The legitimacy of our court’s decisions rests in part on the perception and reality that we are applying the rule of law, not our personal preferences for what the law should be. As Justice Frankfurter admonished, we are not “justified in writing [our] private notions of policy into the Constitution, no matter how deeply [we] may cherish them or how mischievous [we] may deem their disregard.” W. Va. State Bd. of Educ. v. Barnette,
“If these principles of constitutional construction were to be ignored critics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves. Courts are not legislatures, and neither are they constitutional framers and adopters of constitutions. What Justice Powell said in another context is not without relevance: ‘We should be ever mindful of the contradictions that would arise if a democracy were to permit general over*516 sight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.’ ”
Caballes,
The majority, by diverging from settled federal precedent, contributes to a Tower of Babel-like cacophony of varying state court interpretations of nearly identically worded search and seizure provisions. Our court is now part of the problem, not the solution. As one commentator observed, “state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.” James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L.Rev. 761, 763 (1992) [hereinafter Gardner]. Adherence to well-settled Fourth Amendment precedent promotes uniformity between state and federal search and seizure law. Our sister states have recognized the importance of uniformity in state and federal interpretations of the same constitutional language.
The Iowa bench and bar and the law enforcement community are whipsawed by our court’s end runs around well-settled Iowa and Federal Fourth Amendment precedent. Federal Fourth Amendment law has been comparatively stable. See Davis, — U.S. at-,
II. We Should Articulate Standards for Departing from Settled Federal Precedent When Construing the Same Provisions in the Iowa Constitution.
We, of course, have the interpretive power under our state constitution to depart from federal precedent. Just because we can depart does not mean we should. I disagree with the majority’s assertion that our court should not establish “criteria” for determining when to diverge from federal interpretations. In my view, our departures should be based on articulated standards that mean something more than a salute to Iowa “values” or a bald conclusion the federal precedent is “unpersuasive.” See Schwartz,
The battle lines for this debate are drawn in the divided decision of the South Dakota Supreme Court in Schwartz. See generally
The United States Supreme Court squarely addressed the question of the applicability of Fourth Amendment protections to curbside trash in California v. Greenwood,
Two concurring opinions called for the type of analysis lacking in today’s' majority opinion and in Baldón, Pals, and Ochoa. See Schwartz,
In deciding whether a state constitutional provision should receive a divergent interpretation, we should examine (1) the text of the provision at issue; (2) the territorial, legal, and constitutional history surrounding the provision; (3) the structural differences in the State and Federal Constitutions; and (4) the matters of unique state tradition or concern that bear on the meaning of the provision.
Id. at 440.
Justice Konenkamp’s thorough analysis provides a useful roadmap for determining whether an independent state constitutional adjudication should lead to a' different result than federal precedent. “Constitutional analysis always begins with the text.” Id. at 441. His concurrence noted, when the South Dakota Constitution was adopted in 1889, “the Federal Bill of Rights had no binding effect on state courts,” suggesting that “the adoption of many of the provisions [in the] State Bill of Rights ... may have reflected an intention primarily to duplicate corresponding federal provisions.” Id. He observed that a difference in wording would provide the best argument for a difference in interpretation. Id. Faced with a “substantively identical” provision, he concluded that
In summary, to ensure that our constitutional jurisprudence develops in a methodical and authentic way, we must be guided by a set of interpretive principles. Authoritative and neutral analysis of South Dakota’s Constitution cannot advance from episodic and reactionary borrowing of results from other state courts. Litigants must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision. If there is any place where the principle of judicial restraint ought to deter us, it is in the area of constitutional divergence. As Professors Whitebread and Slobogin warn, “wide-open state [court] activism runs counter to judicial decisionmak-ing goals of clarity, efficiency, and principled reasoning.... [Such activism] is bad policy because it promotes uncertainty, questionable duplication of review, and result-oriented jurisprudence.” These words offer valid cautions, but, in the right case, they should not discourage us from a vigorous analysis of South Dakota’s Constitution.
Id. at 445 (emphasis added) (citation omitted). The foregoing admonition applies with equal force here.
Our court likewise should not depart from well-settled federal precedent without good reason. Justice Konenkamp’s “neutral set of divergence standards” provides guidance to those who would advocate construing an Iowa constitutional provision differently than its federal counterpart. Such standards are missing in the majority’s analysis today and in Ochoa, Pals, and Baldón. Those standards warrant no departure from Knights and its Fourth Amendment progeny in this case.
Ill: Conclusion.
For generations, in countless other decisions, our court has construed the search and seizure provision in the Iowa Bill of Rights to be of the same purpose, scope, and effect as the Fourth Amendment. It is this long-standing tradition of adherence to settled federal precedent from which our court has diverged, sporadically, since Ochoa was decided in December 2010. We do our job best as a state supreme court by applying our own pre-Ocfeoa jurisprudence, which holds article I, section 8 of the Iowa Constitution has the same meaning as the Fourth Amendment. We should return to relying on well-settled federal precedent on search and seizure issues.
For these reasons, and the reasons set forth in the dissents of Justices Mansfield and Zager, I would affirm the decision of the court of appeals and judgment of the district court upholding the search of Short’s residence.
MANSFIELD, J., joins this dissent.
. The majority opinion today and in Baldón reviewed the use of evidence to prove new
. The people of Florida amended their state constitution's search and seizure provision in 1982 to require conformity with Supreme Court decisions interpreting the Fourth Amendment. Fla. Const, art. I, § 12 ("This right shall be construed in conformity with
.The majority wrongly concludes the State failed to preserve error on the consent issue because the State used the term "waiver” in arguing the consent-to-search provision in Short’s probation agreement should be enforced. The majority faults the State for not developing the record on consent in the district court. The probation agreement is part of the record. What further factual development is needed to decide the issue here? And, why fault the State for not developing a better record on consent in district court when Short did not argue at that time for broader rights under the Iowa Constitution? As Justice Zager’s dissent further explains, the consent-to-search provision is in play in this appeal and supports affirmance of the rulings upholding the search. But, let us take the majority at its word. The saving grace is that, if the consent issue was waived by the State in this case, then the majority does not decide it, and the State remains free in future cases to argue for enforcement of probation consent-to-search agreements.
The majority asserts no party "asks us to revisit” Baldón. The majority fails to mention that the State indeed argued at oral argument that Baldón was wrongly decided and Fourth Amendment precedent — Knights— should be followed. Yet, the majority has no hesitation finding broader restrictions on police searches under the Iowa Constitution, even though Short made no such argument in the district court. To reach that issue, the majority must find that Short’s trial counsel was ineffective. I disagree that his trial counsel was ineffective for failing to foresee our court would depart from Knights, a unanimous decision of the United States Supreme Court directly on point and widely followed by other state supreme courts without any academic criticism. We do not require criminal defense counsel to be clairvoyant. See Millam v. State,745 N.W.2d 719 , 722 (Iowa 2008).
. Today’s majority claims Cullison was decided under the Iowa search and seizure clause because article I, section 8 is mentioned in the defendant’s brief in that case. That brief was not appended to the opinion. Do we now expect lawyers to discover hidden rulings in our opinions published a generation ago based on a citation in an archived brief, akin to archeologists finding a long-lost temple in the jungle?
. Would today’s majority prohibit a warrant-less search of the home of an offender serving a sentence under house arrest with an ankle bracelet monitor as an alternative to incarceration in a state penitentiary or county jail? If so, will that discourage use of home confinement and encourage incarceration, at greater loss of liberty and taxpayer expense?
. See, e.g., State v. Raines,
. The right of the people to be secure in their persons,- houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV.
. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
Iowa Const, art. I, § 8.
. At the time the Iowa Constitution was enacted in 1857, the Fourth Amendment limited only the federal government. See Weeks v. United States,
.See, e.g., Caballes,
. See also Baldon,
. As noted, the deputies obtained a warrant to search Short's residence and telephoned a magistrate upon discovering Short’s new address. The magistrate mistakenly advised that the officer could write the new address on the warrant. The State does not ask us to revisit Cline to find a narrow, good-faith exception to the exclusionary rule under the facts of this case.
. In Pals, the majority held a consent search was involuntary under article 1, section 8 of the Iowa Constitution because the officer failed to tell the motorist he had a right to say
. The same mindset produced today's juvenile sentencing decisions in which our court stands alone at the fringe of Eighth Amendment jurisprudence. See State v. Lyle, — - N.W.2d -, -,
. We invariably scrutinize the evidentiary record to determine whether precedent is factually distinguishable. Federal courts may be divided, or certain issues may be unsettled. And, we may decline to follow precedent found to be plainly erroneous. Precedent may be reexamined in response to intervening changes in the law or other circumstances. Our case-by-case adjudication is never unthinking or predetermined in a way that forecloses such analysis. Neither should our decision-making be untethered from precedent.
. See, e.g., State v. Hunt,
. I disagree with the majority's contention that federal courts have "diluted” Fourth Amendment protections. The majority relies on dissenting opinions and commentators for that view, which is belied by the unanimous decision this term holding police generally must obtain a warrant before searching a smart phone seized incident to a lawful ar
. See also Kerrigan v. Comm'r of Pub. Health,
Dissenting Opinion
(dissenting).
I join in the dissents of Justice Waterman and Justice ’ Zager, but write separately to respond to the majority’s ten “[ejstablished [pjrinciples of [independent [sjtate [constitutional [l]aw.” As I will attempt to show, these are not established principles. I will respond to the majority’s ten points in order.
1. The majority begins its list of ten principles by asserting that its constitutional approach announced in 2010 has been “thoroughly explored” in a majority
I respectfully disagree. Actual decisions are binding and can have stare decisis effect, but is a philosophical approach binding? Is a statement by the Iowa Supreme Court in one case that it gives no weight to United States Supreme Court interpretations of the same constitutional language binding for all future cases? I think not. Could four Justices of the Supreme Court bind this court in the future to follow “original intent,” “legal realism,” or “economic analysis of the law”? I doubt it.
Furthermore, the State of Iowa has directly put at issue the approach to be taken in this state constitutional search and seizure case. While the State is not seeking to overturn the Ochoa, Pals, or Baldón decisions today, it has asked this court to give deference to United States Supreme Court precedent. In particular, the State asks this court to follow United States v. Knights,
Thus, we need to decide whether we give deference to Knights or not. I believe we should.
2. The majority’s second principle is that state constitutions were “the original protectors of individual rights.” Here, all the majority is really saying is that America had states before it had a national government. Of course that is true. But what is the relevance of that point when it comes to interpreting the Iowa Constitution of 1857?
Our state did not come before the United States. We became a state over fifty years after the Federal Bill of Rights was ratified. Our framers adopted article I, section 8, not because it resembled something in some other state’s colonial era constitution, but because it was already the federal constitutional provision. So if timing and sources matter, we should be guided by interpretations of the Fourth Amendment.
3. Principle three is that there was a strong emphasis on individual rights in the Iowa Constitution. To support this contention, the majority cites us to the statements made by George Ells during the debates over the Iowa Constitution. We should look at Elis’s actual words, not the majority’s paraphrasing.
After offering an amendment that was adopted by the convention to include a counterpart to the Due Process Clause in the Iowa Constitution, Ells said:
I am one of that class of men who believe that that clause in the Constitution of the United States, has been violated by the Congress of this nation in such a manner that we would be justified at this time, either by legal enactment or by incorporating provisions into our constitution, in protecting ourselves from its operation. I regard the Fugitive Slave Law as unconstitutional, because it does not give to man the right to defend his life and liberty by “due process of law.” In this opinion, I expect to be at variance with my friend from Lee, [Mr. Johnston,] and those who*521 act with him. Now, the committee who have offered the amendment to this second section, did so from a desire that the Bill of Rights in the Constitution of this State, should be as strong, in this respect, as the Constitution of the United States. We have seen, Mr. Chairman, that Constitution violated again and again by the dominant party in the land, which rides rough-shod over the necks of freemen. In common with a large majority of the people of this State, I desire to see our constitution contain every guarantee for freedom that words can express. If the words “due process of law,” shall in time be recognized by our judicial tribunals to mean what they really do mean, “that no person shall be deprived of life, liberty or property, without a legal proceeding based upon the principles of the common law, and the constitution of the United States”— that every man, when his life or liberty are imperilled, shall have the right to be tried by a jury of his countrymen. Then, sir, that infamous Fugitive Slave Law will become a nullity, and the American people will trample its odious enactments in the dust.
1 The Debates of the Constitutional Convention of the State of Iowa 101-02 (W. Blair Lord rep., 1857) (emphasis added), available at http:/Avww.statelibraryofiowa. org/serviees/collections/law-library/iaconst/ iaconstdebates.
Reading Elis’s statement in its entirety, rather than the majority’s shorthand version, he was clearly urging his colleagues to include a due process clause in the Iowa Constitution so that it would have the same degree of protections against a rampant majority as the United States Constitution provided. He was not proposing a due process clause so that Iowa’s courts could go on future solo missions to find new interpretations of constitutional provisions with established meanings.
McClure v. Owen is another example of the majority’s overenthusiastic reading of nineteenth-century sources. See
Thus, in McClure, the court noted the United States Supreme Court had refused to follow our court’s most recent interpretation on a' question of the authority of municipal corporations under the Iowa Constitution. Id. at 253 (citing Gelpcke v. City of Dubuque,
Along the same lines, Iowans should justly be proud of several landmark decisions of our court, including Clark v. Board of Directors,
Also somewhat extravagant, in my view, is the majority’s claim that our framers’ use of a semicolon rather than a comma in article I, section 8 indicates “the framers [of the Iowa Constitution] believed that there was a relationship between the reasonableness clause and the warrant clause.” Let’s review the federal and the Iowa provisions. First, the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV.
Now article I, section 8:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
Iowa Const, art. I, § 8.
I do not think one can use this inconsequential punctuation difference to justify a different interpretation of article I, section 8.
Notably, in Ochoa the court merely noted this difference. See
4. The majority’s next principle is that the incorporation of federal constitutional guarantees against the states has led to “a tendency for the United States Supreme Court to dilute the substance of the rights.” The Fourth Amendment, in the view of the majority, was watered down once it became incorporated against the states under the Fourteenth Amendment. The majority decries the United States Supreme Court having replaced clear requirements with “vague notions of reasonableness.”
People can decide for themselves whether this court’s recent article I, section 8 decisions have led to greater clarity and predictability. In my view, a rule that would sustain searches based on reasonable suspicion of probationers who consented to such searches as a condition of probation is straightforward and easy to
And if Knights really involved some deviation from historic Fourth Amendment principles, one would expect some other state court, somewhere, to have voiced disagreement. But the majority cites no example of a state court that has declined to follow Knights under its own constitution. To the contrary, just next door, in State v. Anderson, the Minnesota Supreme Court unanimously declined an invitation to depart from Knights under the Minnesota Constitution.
In this unanimous decision, the Minnesota Supreme Court observed:
The Supreme Court’s decision in Knights does not appear to be a sharp or radical departure from its previous decisions or a retrenchment on its Fourth Amendment jurisprudence with respect to probation searches. Moreover, we are not convinced that federal precedent inadequately protects our citizens’ basic rights and liberties. Accordingly, we decline Anderson’s invitation to deem the search of his residence unreasonable under the Minnesota Constitution.
Id.
Notably, Minnesota’s counterpart to the Fourth Amendment is worded quite similarly to Iowa’s article I, section 8, including the presence of a semicolon between “violated” and “and.” Compare Minn. Const, art. I, § 10, vnth Iowa Const, art. I, § 8.
5. In principle number five, the majority contends that “lockstepping state law to federal precedents is not a humble or minimalist approach, but is an aggressive and maximalist approach to the law.” This is a straw man attack because no member of this court has questioned its authority to independently interpret Iowa’s Constitution. The issue is one of deference — do we exercise our substantial authority “in the search and seizure area with a degree of self-imposed modesty and restraint”? See Baldón,
I do not understand the basis for the viewpoint that we are being “humble” when we reject precedents from the United States Supreme Court and state supreme courts around the country and conclude, by ourselves, that a warrant is always necessary to search a home absent exigent circumstances (or maybe consent).
The logic of the majority’s opinion would also require a warrant before searching the home of a person who is under house arrest. Does that make sense?
The implication of the majority’s position is that one is being “humble” when one finds new constitutional rights and “maximalist” when one does not. This is certainly open to question. In fact, if we look at what transpired, tragically, between In re Ralph,
Both cases involved a slave who entered free territory. In In re Ralph, the slave had entered Iowa with the consent of his master, albeit on condition that he pay a certain amount to his master “as the price
In Dred Scott, the United States Supreme Court held that Dred Scott could not obtain his freedom, despite the fact that he had been brought by his master into free territory voluntarily and had spent considerable time there.
[A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no of-fence against the laws, could hardly be dignified with the name of due process of law.
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Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.
Id. at 450-52,
In my view, you can only draw the lesson from In re Ralph and Dred Scott that courts should be constitutional innovators if you disregard what those decisions actually say.
Since the majority accuses the dissenters of utilizing “what Professor Adrian Vermeule refers to as a ‘precommitment device,’” it is worth reading the relevant section of Professor Vermeule’s article. Here it is:
On this picture, free-speech doctrine is partly a judicial precommitment device and partly a prophylactic rule. It is a precommitment device insofar as judges devising free-speech doctrine at time 1 worry that at time 2 their own cognition or decision-making processes will be affected by some overpowering influence. (In the free-speech context, the influence might be the social exigency that provoked the political suppression of speech, or the offensiveness of the speech itself.) So the judges restrict their choices at time 2 by announcing, at time 1, a rule that will prevent their future selves from surrendering to the passions of the moment. It is a prophylactic device insofar as judges choosing free-speech rules at time 1 worry, not about their own future cognition, but about the cognition of other judges deciding future cases, either judges of subordinate courts or future members of the very court that devised the rule at time 1. Here the judges formulate legal doctrine in order to restrict other judges’ future choices.
Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 2000 Sup. Ct. Rev. 357, 366-67 (2000) (footnotes omitted). I do not know what this verbiage means but I am confident it will not help me in deciding whether the search of Mr. Short’s residence in this case was lawful.
I am not aware of any clamoring by society to give judges more power to strike down laws. The federalism movement generally focuses on two goals: (1) restraining the power of the federal government; and (2) giving states a greater ability to decide their own destiny. Expansive, idiosyncratic interpretation of article I, section 8 serves neither goal. As I pointed out in Baldón, federal officials are not bound by article I, section 8, and if the evidence from Short’s house in this case had been used to prosecute Short on a federal charge, he would have no recourse. See Baldón,
Nor is the majority giving Iowans a greater opportunity to choose their own destiny. Rather, it is overriding a determination by Iowa’s elected branches that searches, upon reasonable suspicion of persons who have been sentenced to probation, are an appropriate way to rehabilitate the defendant and protect the community. See, e.g., Iowa Code § 907.6 (2011) (“Probationers are subject to the conditions established by the judicial district department of correctional services subject to the approval of the court, and any additional reasonable conditions which the court or district department may impose to promote rehabilitation of the defendant or protection of the community.”).
The majority’s second irony runs something like this: (1) the United States Supreme Court’s jurisprudence is confusing and not uniform, and (2) the Iowa Supreme Court will be able to straighten things out and provide uniformity. I think this overestimates the wisdom of this court. Justice Scalia, whose observation about “inconsistent jurisprudence” is quoted with approval by the majority, advances the view that we should go back to 1791. See California v. Acevedo,
7. The majority then goes on to say that any lack of uniformity between federal and Iowa search and seizure law “does not create a substantial burden on professional law enforcement.” I question this statement.
I do not agree that all court decisions are perfect and equal. Some court decisions create needless burdens because they have incomplete reasoning, leave questions unanswered, contain unneeded dicta, or threaten to go in a direction without actually going there. No judge should ever assume that applying her or his decision will be an easy task, even for professionals.
But this gets back to my original point. When we choose to follow Federal Fourth Amendment precedent, we are following standards that have already been put into practice around the country. Those decisions have been vetted and not only by their authors. So the unanticipated consequences of those decisions, to a large degree, have already emerged and been ad
When we embark on our own path, we do not know what the consequences will be. For example, will the majority’s ruling in this case lead to fewer grants of probation and a higher rate of incarceration? I do not think the majority knows.
The majority also asserts that its approach will not burden attorneys because the work required to develop state constitutional law arguments is “not overwhelming.” Here, I agree with the majority. Even when the briefs do not contain arguments under the Iowa Constitution, this court has been repeatedly willing to make the arguments for the litigants and decide them. In fact, it almost seems as if a lawyer in this court would be wiser not to develop an Iowa constitutional argument. A litigant who actually writes up an argument generally has to stand or fall on that argument, but a litigant who merely refers to the Iowa Constitution in passing gets the benefit of whatever theory this court decides to develop.
8. The majority’s eighth principle is that it is better not to develop a set of “criteria” for when this court will deviate from federal precedent. The majority says we will simply exercise “our best, independent judgment of the proper parameters of state constitutional commands.”
I respectfully suggest we owe the citizens of the state a bit more than this. We owe them our best independent judgment, to be sure, but that independent judgment should be tempered with respect for those who came before us and grappled with the same issues.
9. The majority’s ninth principle is that when we are dealing with parallel state and federal constitutional provisions and parties do not advocate a separate Iowa constitutional standard, this court will generally apply the standard set forth in federal constitutional caselaw, but reserve the right to do so more stringently. See, e.g., State v. Kooima,
Needless to say, this approach, amorphous though it may be, involves at least some degree of deference to federal precedent.
Thus, in Ochoa, this court said, “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 summary, if you read Ochoa, Pals, Baldón, and today’s opinion, federal constitutional precedent gets no deference regardless of what the defendant argues. But at other times, even when the case involves article I, section 8, this court generally follows the federal framework in the absence of separate argument. See, e.g., Kooima,
10. In its tenth and final principle, the majority again claims the mantle of precedent for itself. It says that it is simply reaffirming State v. Cline,
The tenth principle is really just the first principle making an encore. The majority believes it is settled law (since December 2010) that United States Supreme Court search and seizure decisions are entitled to no more deference than a law review article. I continue to question that proposition and therefore file this dissent.
WATERMAN and ZAGER, JJ., join this dissent.
. The majority notes that "during this time period the United States Supreme Court upheld the Fugitive Slave Law from constitutional attack.” I do not follow where the majority is heading with this point because the United States Supreme Court did not uphold the Fugitive Slave Law until two years after Elis's statement. See Ableman v. Booth,
. The majority claims to be following this court’s own precedent of State v. Cullison,
In Ochoa, this court twice acknowledged that Cullison was a Fourth Amendment decision before claiming otherwise at the end of the opinion. First the court said, "[T]his court's decision in [Cullison ] ... held that a parolee did not surrender his Fourth Amendment rights by virtue of his status as a parolee.” Ochoa,
As noted by Justice Zager, those who would view Cullison as a decision based on article I, section 8 face the considerable obstacle that the decision never mentioned article I, section 8.
Dissenting Opinion
(dissenting).
I respectfully dissent. I believe the search in this case was constitutional under both the State and Federal Constitutions. I disagree with the majority’s framing of the issue and the majority’s reliance on State v. Cullison,
The majority curiously sidesteps the true issue in this case, which was unanswered in Ochoa and Baldón. In doing so, the majority departs from the incrementalist approach we have recently taken in search and seizure cases under the Iowa
When he was placed on probation, Short executed a probation agreement under which he consented to a search of his person, property, place of residence, vehicle, and personal effects at anytime, with or without a search warrant, “by any probation officer or law enforcement officer having reasonable grounds to believe contraband is present.” (Emphasis added.) The district court in its order referred to this language as a “waiver.” There is no dispute that the probation agreement contained consent-to-search language.
In addition, the district court found the search of Lorenzen’s apartment was based upon probable cause, even after acknowledging the search warrant itself was defective. Short never challenged this probable-cause finding for the search. Nevertheless, the majority characterizes the officers’ individualized suspicion as only “reasonable suspicion.” I believe, in light of the district court’s undisputed finding of probable cause, coupled with the consent language of the probation agreement and our caselaw, we should address whether under the Federal and Iowa Constitutions, general law enforcement authorities may constitutionally conduct a warrantless search of a probationer based on the individual’s waiver of his search and seizure rights and probable caus.
The flaws of the majority’s analysis do not end with the framing of the issue. In relying on Cullison, the majority asserts “[tjhere can be no question that Cullison involves a holding under the Iowa Constitution.” While this is true, Cullison does
Most conspicuous in Cullison is the analogous federal constitutional provision, the Fourth Amendment. That constitutional provision is quoted once in its entirety. See Cullison,
Yet, in spite of the invisibility of article I, section 8 in Cullison, the majority in this case unequivocally asserts the case’s holding is under that provision. I would draw the opposite conclusion in the face of the unmistakable, explicit indications to the contrary. Cullison is without question not a holding under article I, section 8 of the Iowa Constitution. That being so, I would conclude Cullison is not substantive authority under article I, section 8, and we are not bound to follow Cullison in this case.
Even if one were to concede somehow that Cullison was interpreting article I, section 8 of the Iowa Constitution, there are numerous reasons not to apply Culli-son’s holding to this case. See State v. Bruce,
There are also factual and legal distinctions in Cullison that compel us to reconsider its continued validity. Cullison’s conclusion was based in part on reasoning that is now questionable in light of subsequent developments. Cullison cited a bevy of federal cases and secondary authorities for the proposition a parolee’s right to equal protection might be violated by admitting evidence obtained in a war-rantless search. See
What makes Cullison most factually distinct is its lack of a consent-to-search provision in the parole agreement. This is a significant reason why Cullison is distinguishable from Baldón, in which such provisions became the focus of our analysis of consent and waiver. See Baldón,
Also, a parole officer performed the search in Cullison. See
Finally, the search in Cullison, as in Ochoa, was not supported by any level of individualized suspicion. See Ochoa,
The determination that Cullison’s holding does not control the outcome of this case is just the starting point of the analysis. As the majority recognizes, we have repeatedly declined to dogmatically interpret article I, section 8 in the manner the United States Supreme Court interprets the Fourth Amendment, despite the obvious textual similarities between the two provisions. See, e.g., id. at 170 (explaining the Fourth Amendment special-needs doctrine and concluding the doctrine cannot be used “to make an end-run” around parolees’ rights under the Iowa Constitution); Ochoa,
That said, we have not discarded federal precedents from the panoply of available persuasive sources. In Ochoa, we declined to follow the Supreme Court’s interpretation of the Fourth Amendment in Samson, taking instead a constitutional path under our own constitution that rejected war-rantless searches of parolees “without any particularized suspicion or limitations to the scope of the search.” Ochoa,
The Supreme Court has twice upheld warrantless searches of probationers under the Fourth Amendment. In Griffin, probation officers conducted a warrantless search of a probationer’s home under a Wisconsin probation regulation that allowed warrantless searches based on “reasonable grounds.”
Later, in Knights, the Supreme Court confronted an issue very similar to one before us in this case.
Knights moved to suppress the evidence obtained during the warrantless search of his apartment, arguing the search violated the Fourth Amendment. See id. at 116,
A unanimous Supreme Court reversed the ruling of the court of appeals. See id. at 122,
The Supreme Court declined to base its holding on the “consent” rationale argued by the Government in cases such as Zap v. United States,
In rejecting Knights’s argument, the Supreme Court focused on the balance of the individual’s privacy interest and the government’s legitimate interests. See id. at 119,
The balancing approach the Supreme Court employed in Knights evaluates a search’s reasonableness, “[t]he touchstone of the Fourth Amendment.” See id: at 118-19,
There can be no reasonable dispute that Knights controls the determination whether the search of Short was constitutional under the Fourth Amendment to the Federal Constitution. Short was, like Knights, on probation, and he thus had a diminished expectation of privacy. See id. at 119,
Of course, the conclusion reached by the United States Supreme Court under the Fourth Amendment does not resolve the question of the constitutionality of the search under article I, section 8 of the Iowa Constitution. As the majority notes, this court has resisted reasonableness as the measure of the constitutionality of a search under the Iowa Constitution. This, even though article I, section 8 mirrors the Federal Constitution regarding unreasonable seizures and searches, and this court’s own statement that “[tjhere is of course little doubt that, in light of the nearly identical language in article I, section 8 and the Fourth Amendment, they were generally designed with the same scope, import, and purpose.” See Ochoa,
Even our own authority leaves open the clear possibility of an exception to the warrant requirement under certain circumstances. See Ochoa,
As previously noted, one recognized exception to the warrant requirement under our constitution is consent. State v. Reinier,
In Baldón, we held a search provision contained in a parole agreement did not constitute consent to search under the Iowa Constitution. See id. at 803. But, it is important to understand the reasoning we relied on in reaching this conclusion. First, we set aside from consideration the cases dealing with probation agreements like those we are dealing with here. See id. at 795. We said probation agreements were of limited value in analyzing the consent issue because probationers “maintain a vastly superior bargaining power than parolees.” See id. We noted with approval that many courts find that this vastly superior bargaining power of probationers “renders probation agreements consensual.” See id.
Second, we noted that courts in other states had rejected consent derived from parole agreements as a theory for upholding searches of parolees because such a condition of parole was coercive and therefore involuntary. See id. at 796. It was this lack of free will or “no ‘choice’ ” if a person wanted to be released from prison, which determined our decision on consent. See id. (quoting Samson,
Finally, in Baldón, we surveyed the academic community and noted it had also recognized weaknesses in treating consent searches as voluntary searches in the context of a parole agreement. See id. at 797-800. We, therefore, decided Baldón based on the vastly unequal bargaining power of the parolee, the coercive atmosphere of parole, and “no choice” concerning the search condition. We concluded
Of course, there is no similarity between the search of Baldón and the search of Short. Here, we are dealing with a probation agreement. A majority of the courts across the nation that have considered the issue have concluded that “consent-search provisions in probation agreements constitute a waiver of search-and-seizure rights.” Id. at 792-93 (citing cases); see also, e.g., United States v. Barnett,
While a majority of courts have upheld the waiver provisions against constitutional attack in the probation context, the analysis does not end on consent alone. The surrounding circumstances of the search itself must also be considered. In our leading parole search case of Ochoa, a police officer searched a parolee’s motel room without any particularized suspicion and without a warrant.
We set forth in Ochoa the primary considerations we used to resolve the issue in that case, intending that those considerations guide future cases. We traced events back to the English Crown’s use of “general warrants,” which were “open-ended as to time, place, and duration,” but warrants nonetheless. See id. at 269. In one Eighteenth Century English case challenging a general warrant, an esteemed jurist “rejected arguments that general warrants were necessary to advance the ends of government.” Id. at 270. The judge quipped, “[I]f suspicion at large should be a ground of search, ... whose
The experience in the American colonies was similar, but the warrants issued under a different moniker. See id. at 271 (explaining writs of assistance “allowed general searches for customs violations”). “[W]rits of assistance” were broader than general warrants issued in England. Id. The writs “were not returnable after execution,” continuing instead “to authorize general searches during the life of the sovereign.” Id. Officials to whom the writs were issued possessed unlimited discretion. See id. Like their counterparts across the Atlantic, the colonists strongly opposed the open-ended authority conferred by the writs. See id.
We reasoned this historical background of the Fourth Amendment, and “by implication” article I, section 8 of the Iowa Constitution, indicated an intent to limit arbitrary searches and seizures. See id. at 272. In addition, a review of the circumstances surrounding the adoption of the Federal and Iowa Constitutions confirmed the framers sought to protect against the government abusing its power. See id. at 274. Despite ongoing current debate over whether the framers accepted warrantless searches, the historical review suggested the framers did not intend to allow law enforcement to perform “broad, unlimited” warrantless searches. Id. at 273.
We also traced the development of the United States Supreme Court’s Fourth Amendment jurisprudence. See id. at 275-83 (discussing relevant precedents). After noting that exceptions for automobile searches, searches incident to arrest, and exigent circumstances still required a showing of probable cause, we described the Supreme Court’s relaxation in other contexts of the probable-cause requirement. See id. at 279. For instance, the Supreme Court has carved out an exception for “special needs” not related to law enforcement when a warrant and individualized suspicion are unnecessary. See id. (explaining the development of the special-needs exception); see also, e.g., Nat’l Treasury Emps. Union v. Von Raab,
Turning to the closely related United States Supreme Court cases, we reviewed Griffin, Knights, and Samson. See Ochoa,
In the Samson dissent, Justice Stevens inveighed against the majority for upholding “an entirely suspicionless search unsupported by any special need.”
Ochoa’s survey did not end at the Samson dissent; however, our rejection of war-rantless, suspicionless searches of parolees flowed largely from it and the historical narrative. We reasoned that law enforcement having the power to search “a parolee at any time, for anything, anywhere, including the home, without any suspicion of any kind” resembled too closely the general warrant “despised” by our forebears. See Ochoa,
The takeaway from Ochoa was that the search of the parolee was unconstitutional because there was no limitation whatsoever on the police officer’s discretion. See
The search conducted in this case, in comparison to the searches conducted in Ochoa and Baldón, is clearly distinguishable. The search in this case “met the most stringent” Fourth Amendment search standard, “probable cause.” See United States v. Flynn,
As noted above, our constitutional independence frees this court from applying the reasoning the United States Supreme Court used to uphold the warrantless search of the probationer in Knights. That reasoning, which rests on judgments about a probationer’s privacy expectations and which was similarly applied to parolees in Samson, has been criticized as “totally circular.” See 5 LaFave, Search and Seizure § 10.10(c), at 544 (explaining the circularity of the Court’s logic in Knights ); Samson,
In Iowa, the lowest level probationers do not enjoy the liberty to which law-abiding citizens are entitled. Iowa Code chapter 901B sets forth a “corrections continuum.” See Iowa Code § 901B.1(1) (2013). Probation, like parole, falls on “Level Two” of the corrections continuum, see id. § 901B.1(1)(6), sandwiched between “Level One,” “[njoncommunity based corrections sanctions,” see id. § 901B.l(l)(a), and “Level Three,” “[qjuasi-incarceration sanctions,” see id. § 901B.l(l)(c). Level two is further divided into three levels of sanctions, all of which contemplate at least supervision by corrections authorities. See id. § 901B.1(1)(6 )(l)-(3). Probationers subject to monitored sanctions “are monitored for compliance” with “administrative supervision sanctions” by corrections authorities. -See id. § 901B.1(1)(6 )(1). Supervised sanctions, the middle level, are regular probation supervision and any conditions in the proba
Probation conditions may further abridge a probationer’s liberty. Iowa Code section 907.6 grants broad authority for doing so:
Probationers are subject to the conditions established by the judicial district department of correctional services subject to the approval of the court, and any additional reasonable conditions which the court or district department may impose to promote rehabilitation of the defendant or protection of the community. Conditions may include but are not limited to adherence to regulations generally applicable to persons released on parole and including requiring unpaid community service as allowed pursuant to section 907.13.
Among the parole regulations to which a probationer may be subject is the requirement that the probationer “secure and maintain employment.” Iowa Admin. Code r. 201 — 45.2(l)(c) (2013). Another regulation prohibits a probationer from travelling outside his or her county of residence without permission. See id. r. 201— 45.2(l)(d). Before leaving the state, a probationer must “secure advance written permission.” Id. A probationer may not change residences without permission. Id. r. 201 — 45.2(l)(e). A probationer may also be compelled to “cooperate in any treatmenVrehabilitation/monitoring program” specified by corrections authorities. Id. r. 201 — 45.2(l)(i). These restrictions are strong and significantly limit a probationer’s freedom, but as the statute makes plain, these are additional conditions to which a probationer might be subjected.
Iowa Code section 907.6 also authorizes courts to impose probation conditions. Courts may not impose unreasonable or arbitrary conditions. State v. Rogers,
Our caselaw, our statutes, and our regulations are evidence of a fundamental notion in our law. They show that deeply embedded in our system of law is the notion individuals sentenced for crimes, including those who remain outside a prison’s walls, do not enjoy the same complement of liberties as those of law-abiding citizens. Probationers, unlike ordinary citizens, must comply with stringent condi
Besides our jurisprudence on consent, one additional constraint on governmental authority is individualized suspicion. As we said in Cullison, “the basic purpose of [the search and seizure protection], as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” See
The officers who searched Short operated under no such unrestrained or arbitrary discretion. Rather, having established through diligent investigation probable cause to believe Short committed a burglary, law enforcement applied for a search warrant. While the search warrant issued was ultimately determined to be invalid, the probable-cause finding by the independent judicial officer was never challenged. Not surprisingly, the stolen property was found at the apartment.
The probable-cause requirement significantly restrains law enforcement discretion. This standard is considerably more protective of probationers’ rights than the reasonable-suspicion standard upon which the search in Knights was upheld. See
In Iowa, “[t]he standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched.” Naujoks,
In addition, the concept of probable cause encompasses a number of legal rules designed to limit officers’ discretion and therefore to protect individuals’ rights. In Kern, for example, we rejected the argument an individual’s invocation of constitutional rights could be used by officers to establish probable cause. See
A strict requirement that officers have individualized suspicion before searching a probationer therefore alleviates our predominant concern in Ochoa — that unrestrained general law enforcement could intrude on a probationer’s privacy and rifle through the probationer’s possessions anytime, anywhere, without a warrant, to find evidence of a crime. See
Here, deputies established probable cause for the search by applying for a search warrant. To do so, Deputy Barto-lozzi carefully set forth “facts, information, and circumstances,” including a police report and officer statements describing the burglary. See Iowa Code § 808.3 (describing the necessary contents of an application for a search warrant). The exhibits attached to the application described in detail the items taken in the burglary that deputies expected to find in the residence. Deputy Bartolozzi also described in detail the place to be searched, going so far as to include a picture and description of the residence, which was only later determined to be incorrect. An independent review by a judicial officer determined there was probable cause for the search and granted the search warrant based on Deputy Bar-tolozzi’s scrupulous and earnest efforts. Though the search warrant was later invalidated due to an incorrect address, probable cause was undisputedly established, and the correct address was subject to the search.
In addition to the finding of probable cause by an independent judicial officer, there were other forms of restraint on law enforcement’s discretion in this case. The
The officers’ knowledge Short was on probation also restrained law enforcement discretion. This is not a situation like that of In re Tyrell J., in which the California Supreme Court upheld a police officer’s warrantless search of a juvenile probationer, even though the officer was unaware the juvenile was on probation. See
Finally, in his probation agreement, Short consented to the warrantless search. At the time of the search, Short was on probation for third-degree theft, an aggravated misdemeanor. See Iowa Code § 714.2(3) (“Theft in the third degree is an aggravated misdemeanor.”). Short could have been sentenced to prison for up to two years. See id. § 903.1(2) (“When a person is convicted of an aggravated misdemeanor ... the maximum penalty shall be imprisonment not to exceed two years.”). Rather than being sentenced to serve a prison sentence, Short requested a suspended sentence and received a suspended sentence and probation. As part of that bargain, Short voluntarily agreed to subject himself to warrantless searches by law enforcement and corrections authorities alike. The consent provision is not alone a basis to uphold the search, but Short’s consent in the probation agreement should be a critical factor in upholding the search in this case. The lack-of-bargaining rationale we utilized in Baldón to conclude there was no voluntary consent to the search, is not applicable in the present case.
We would not be alone in holding law enforcement may search probationers without a warrant. Numerous state courts have upheld warrantless searches of probationers and parolees, some supported by individualized suspicion and some requiring probable cause. See State v. Montgomery,
Consent-to-search provisions in probation agreements advance the interests of both offender rehabilitation and societal protection. Probationers who have agreed to warrantless searches are more likely to abide by the law:
The condition of probation that defendant consent to a search of his person by a law enforcement officer without a search warrant is a supervisorial procedure related to his reformation and rehabilitation in light of the offense of which he was convicted. With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to [violate the law].
People v. Kern,
The majority blindly elects to adhere to an absolute search warrant requirement as set forth in Cullison without considering the changing analysis of Fourth Amendment jurisprudence, and the jurisprudence found in other nationwide authority. Such adherence to the past, based on an underlying belief that the United States Supreme Court has eroded and diluted the rights of ordinary citizens to the protections under the Fourth Amendment, and that only a warrant will suffice, is unsound and illogical. The search in this case was constitutionally permissible under article I, section 8 of our Iowa Constitution and our precedents.
I would affirm.
WATERMAN, J., joins this dissent in part, and MANSFIELD, J., joins this dissent.
. The majority is correct that the State did not use the word “consent” in its brief. The State did, however, devote significant discussion to Short’s "waiver” of his search and seizure rights executed as part of his probation agreement. The district court did the same, as did the county attorney and Short's trial attorney. As the Seventh Circuit Court of Appeals has noted in a similar case, "Constitutional rights like other rights can be waived, provided that the waiver is knowing and intelligent, as it was here.” United States v. Barnett,
Also, as is discussed later in this opinion, almost the entirety of the majority opinion in Baldón analyzes the parole agreement from the viewpoint of consent and the voluntariness of the consent-to-search agreement. The State also argued at oral argument that it was relying on the consent provision of the probation agreement itself in support of the search.
. In keeping with this tradition, the majority today quotes article I, section 8 in full. In addition, the majority also mentions article I, section 8 more than thirty times. There can be no doubt the court in this case is interpreting article I, section 8.
. As the majority notes, the Iowa Constitution does not go unmentioned in Cullison. See
. Baldón dealt with a consent provision in a parole agreement. See
Concurrence Opinion
(concurring specially).
The majority opinion capably resolves the issue before the court, and I join it in full. I write separately to emphasize the importance of independently interpreting our Iowa Constitution.
As Iowans, we are deservingly proud of a long history of rejecting incursions upon the liberty of Iowans, particularly because we have so often arrived to the just result well ahead of the national curve. Yet, we cannot ignore that our history of robust protection of human rights owes in no small part to our authority within America’s federalist system to independently interpret our constitution. Similarly, we must not forget that the virtue of federalism lies not in the means of permitting state experimentation but in the ends of expanded liberty, equality, and human dignity. See State v. Baldon,
It goes without saying our decisions have not always been without their detractors. As we pointed out in State v. Lyle, also decided today, “[o]ur court history has been one that stands up to preserve and protect individual rights regardless of the consequences.” — N.W.2d -, -,
Today’s decision is another step in the steady march towards the highest liberty and equality that is the birthright of all Iowans; it will not be the last.
Accordingly, I concur.