State of Iowa v. Justin Dean Short

Iowa, Appellee, STATE SHORT, Appellant. Dean

Justin

No. 12-1150. of Iowa.

Supreme Court

July Defender, Smith, Appellate

Mark C. Wilson, Appellate Assistant Theresa R. Defender, appellant. for General, Miller, Attorney Thomas J. Hanson, Attorney Gen- Kyle P. Assistant eral, County Attorney, Raymond, Darin J. appellee. APPEL, Deputies received an tip Justice. informant’s car girlfriend, Leya of Short’s case, validity we consider the of a Lorenzen, parked at 272Í Jones Street probationer’s of a home warrantless City. Sioux Law enforcement a obtained The defendant was by police officers. search warrant for that address from a and theft. charged burglary The de- judge district associate in Le Mars. The to chal- suppress, fendant filed a motion application place identified the to be admissibility of evidence lenging the ob- “single story searched as a frame wood tained from the search. The defendant yellow home white and in color” with a contended the search warrant was invalid “single garage.” stall police Local assist- inaccurately because it described the house search, however, ing in the reported later and because an to be searched alteration that Lorenzen not did reside the loca- upon a telephonic of the warrant based tion identified on the warrant. After law issuing judge conversation with the was inquired enforcement at the address iden- invalid. The district court overruled the warrant, tified on the the resident who For the suppress. motion to reasons ex- explained answered that he did not know below, pressed we reverse the district Lorenzen or Short but stated that there court and remand the case for further apartment was an next door “people proceedings. coming going from there all the time.” The new location Background two-story was a I. Factual and Proceed- house that had been ings. converted into four apartments. Deputies then contacted the May Plymouth County On a apartment owner of the building and deputy responded sheriff to a report of a learned that Lorenzen had an rented burglary a The deputy of home. met with Street, apartment at 2723 Jones which ½ reported resident who a number of upstairs was the apartment. items, televisions, missing including two two jewelry jewelry, boxes with assorted At point, law enforcement called the gift Restaurant, card Minerva’s judge who issued the original search war- camera. deputy’s investigation re- rant they and asked if should return to Le doorjamb vealed that a had been broken get Mars to another search warrant. Ac- apparently when the door was open. forced cording testimony of the law en- There partial print was a shoe on the forcement officer at the hearing on the outside of the partial fingerprints door and motion to suppress, the district associate on the impressions door. Tire were found judge gave law enforcement verbal author- going driveway from the concrete into the change ization to the address on the war- grass along the side of the house. rant and “to note that this was done tele-

Law enforcement phonically through contacted Minerva’s authority of’ the Restaurant and advised that a gift issuing judge. Law $100 enforcement card had been stolen. Based on their in- scratched out the address on the original quiries, sheriff deputies receipt obtained a warrant and wrote in the new address. from the restaurant generated that was Law through enforcement also scratched gift from the “yellow” house, card’s use. Justin Short’s the word describing the signature appeared the receipt. Depu- they on however left description of the ties also place interviewed the waitress and the single story be searched as “a manager, photo who identified a of Short wood frame home.” No statement was as the person who used the card. original added to the warrant indicating solely argued the search verbal the State that altered pursuant it had been suspicion of the court. was lawful based reasonable authorization involved in crime. that Short was then conducted Law enforcement Jones apartment at 2723 of the ½ rul- court entered a detailed The district search, executing police Upon Street. that the for the ing. application It found televisions, jew- flat two found two screen tainted, but that original warrant in the the sto- burglary, taken elry boxes place be description searched card, and a gift Restaurant len Minerva’s original inadequate. warrant was in the receiving Short’s wallet. After receipt in ruling, the district court noted In so he warnings, admitted that Miranda Short story house single warrant described a the residence, of took in the door the kicked story stall not a two garage with a and items, the pawned some of missing the apartment into units with a house divided was pawn shop. local Short items at a garage lot in back than parking rather burglary and charged with subsequently war- description in the altered stalls. theft. of accord- problems, rant cured some the investigation, law enforce- During the court, it held that ing to the district but probation that Short was on ment learned the telephonic the authorization to alter Although proba- crimes. to other related contrary was Iowa Code section warrant to in connection were contacted tion officials The district further found 808.3. court they did investigation, burglary with the exigent existed to that no circumstances in the It is undis- participate search. exception an warrant re- support puted probation- that the search was not a On the of whether a quirement. issue search, investigato- an ary but was instead could probationer search of a warrantless to related ry by law enforcement search case, however, in this the dis- upheld be new crimes. State. The trict court held favor of the suppress all evidence sought Short court that the officers district reasoned In of his obtained as a result the search. suspicion that reasonable to believe had court, he trial claimed brief to the Short at the would be located property stolen constitutionally protected expecta- had a valid, residence, the that in to be but order apartment; pro- in the his privacy tion of the contem- search must have been within officers un- agreement give bation did not plation probation agreement. of the As search; the altered access fettered obtained ruling, the evidence result warrant violated Iowa Code section into evi- during the search was admitted (2011), which that search requires 808.3 was dence and Short convicted. applications writing; be in warrant appealed. Short We transferred during gathered statements and evidence The court appeals. to the court matter be as fruit suppressed the search should that under article appeals held the claim an raised a num- illegal search. State I, 8 of the Iowa section Constitution resistance, including in its ber of issues court. preserved in the district adequately was valid claiming that the search warrant found that On the merits court altered, circum- exigent after that even upon reason- probationer search of a based present support stances were activity suspicion able criminal search, pro- in Short’s and that waiver limited of the search upon scope based agreement authorized law enforce- bation 8 of the under article section was valid apartment to search the personnel ment however, brief, In a warrant. Constitution. without its search,” argues further review. We now focused id. at but granted We of appeals, vacate the decision of court reasoning suggests Ochoa that a of the district court on reverse the decision requirement warrant for a home invasion remand the suppress, the motion to required, law enforcement is see id. at court. case to the district 287-91. Cullison, Short further relies on State v. of Review. II. Standard (Iowa 1970). case, N.W.2d that the district court failed to Claims we invalidated a warrantless search of the suppress evidence obtained violation of a parolee. home of Id. at 540-41. Accord-

the Federal and Iowa Constitutions Short, Cullison, ing holding Dewitt, reviewed de novo. State namely, that rights the search and seizure (Iowa 2012). The same is parolee of a are not reduced due to his or true claims of ineffective assistance of status, 538-39, her id. at “remained un- Straw, counsel. State v. touched” applies equal Ochoa and (Iowa 2006). probationers. force to Short also notes that search in this case was not a III. Discussion. search, probationary but was a instead A. Positions of the Parties. by general law enforcement offi- challenges 1. Short. Short the denial of cers, a fact that further undermines the the motion to suppress appeal. Short validity of the search. first asserts that he had a constitutionally Short maintains that the state constitu- protected interest in the apartment, tional issue was adequately preserved in correctly district court determined that the event, any the district court. In Short original search warrant specificity, lacked argues that if the not preserved issue was correctly district court determined that Constitution, under the Iowa his counsel the alteration to the pursuant warrant raising was ineffective for not the issue. telephonic invalid, authorization was and State, 683, Taylor v. 352 N.W.2d 684- there exigent were no circumstances to (Iowa 1984) 85 (describing review of claims support warrantless search. counsel). of ineffective assistance of issues, After addressing these Short fo- 2. The State. The State contends that case, cuses on the fighting issue Short not preserve argument did his below namely, whether the warrantless search of under the Iowa argues Constitution. It probationer’s by home law enforcement argue that Short did not that the Iowa I, officers violates article section 8 of the interpreted Constitution should be differ- Iowa Constitution. Short claims that ently from the Fourth Amendment before

State v. emphasized Ochoa we the proper- court, the district suggests that ty rights underpinning sanctity district court’s citation of Ochoa should not home highlighted that our un- cases be construed to mean that the Iowa Con- high derscore the importance of a warrant duly stitution was raised. issued by a neutral magis- and detached trate when a home search was involved. argument State’s sole on the merits (Iowa 2010). 792 N.W.2d Short of the appeal is that because the search of recognizes that court probationer by Ochoa did not was supported reasonable address suspicion “whether individualized suspicion, the search was constitutionally amounting to than probable may less cause In support argument, valid. of its be Wisconsin, sufficient in some support contexts to a State cites 483 U.S. Griffin (1987), justi exigent circumstances existed 97 L.Ed.2d 709 107 S.Ct. need not a warrantless search. We fy Knights, 534 U.S. States v. and United (2001). argu extent to which these consider the 151 L.Ed.2d merit, as under our may ments have had cases, States the United In both they have been precedents and our rules searches of warrantless upheld Court R.App. in this See Iowa P. appeal. waived upon based reason of probationers homes )(3) pres 6.903(2)(g (requiring appellant Fourth Amend under the suspicion able authority in supportive arguments ent up Griffin, ment. In “[fjailure to cite stating brief and appeal probationer of a a warrantless search held may an issue be authority support upon that was based by officers probation issue”); waiver of in deemed performed and was suspicion reasonable (Iowa 2005) Seering, au regulation a Wisconsin compliance 870-71,(“In argument on these the absence of an at thorizing such searches. U.S. appeal], we deem them allegations [on L.Ed.2d at S.Ct. waived.”); Garner, Hyler v. 548 N.W.2d 715-16, Knights, at Griffin (Iowa 1996) (confining consider include searches conducted extended to appeal); to issues raised on Richard officers. ation enforcement general law (Iowa Neppl, 120-22, son 122 S.Ct. at Knights, 1970) (“A assigned neither nor proposition 592-93, Relying 151 L.Ed.2d 506-07. and need not argued presents question no ar Griffin, the State upon Knights review”). considered us on under article be that Short’s claim gues the Iowa Constitution lacks section 8 of Further, although the district merit. argument pro cited Short’s that his court Ochoa, recognizes that in The State give not law enforce agreement bation did of the interpretations from the departed access to conduct ment officers unfettered See 792 States Court. search, specifically only court the district Yet, argues the State N.W.2d at 287-91. right “the had the police found that not hold that warrantless that did Ochoa residence under the terms search Short’s invalid, only that war- were but searches therefore, “the probation” of his without at parolees rantless searches of unlawful.” The district search was not were suspicion least some individualized holding regard or finding court made no narrow- id. at 291. The State invalid. See itself probation agreement whether the ing indicating acquies- as ly interprets Ochoa Knights, valid consent. constituted Cf. parolees searches cence warrantless 6, 122 at 591-92 at 118-20 & n. S.Ct. U.S. upon individualized probationers based (“We at 504-05 & n. 6 & n. 151 L.Ed.2d suspicion. Knights’ accep whether need not decide constituted tance of the search condition Issue Preservation. IV. complete in the ... of a consent sense rights Amendment of waiver of his Fourth begin We first our discussion that the search of what ... because we conclude with a review of preservation issue general was reasonable under our Knights the State presented issues were not of ‘examin approach an Fourth Amendment The State did not advance appeal. ” circumstances’.... ing totality ob originally the warrant argument that omitted.)). (Internal defective, On quotation altera marks that the tained was argue that Short the State did not appeal, not violate the tion of the warrant did 808.3, to the search. The voluntarily consented section requirement of Iowa Code appear apply controlling does not restrained to law word “consent” as the parties.... advocated brief,1 nor did the State cite cases State’s (Citation omitted.) of consent validated a the issue important where It that result, consistently applied As a the issue our waiver rules be search. warrantless all apply special cases and that we not probation conditions of of whether for certain without a parties princi- rules voluntary to a consent is not amounted pled doing basis for so.3 Ochoa, 792 at 292 before us.2 See N.W.2d failure (finding argue the State’s preservation We now turn to issue questions related to Short’s claims. The appellant consented to a appeal suggests constitutionality State that the ordinarily would waive search at the door I, the search under article section 8 of the issue); White, Parkhurst cf. presented Iowa was not Constitution Iowa district court. suppress, his motion to (“Appellees argue question do not ... however, I, specifically Short cited article waived.”). it and we consider As noted in section 8 of Constitution as the Borkowski, Feld v. 78 n. 4 argument basis for his that the search was (Iowa 2010), invalid because there was no effective war cogent in the of the most cir- absence Further, rant. appears district court cumstances, we do not create issues or recognized to have the state constitutional unnecessarily existing overturn law sua argument in its when it opinion extensively sponte parties when the have not advo- Ochoa, solely discussed a case involving change.... cated for such a article section 8 of the Iowa [W]e Constitu- brief, 1. In its the State probation may contends Short that court-ordered conditions searches, “acknowledged ‘significantly permit his diminished’ warrantless but the evidence expectation privacy by signing proba- only probation proceeding. [the] is admissible in a State, agreement,” (Fla. tion which included a "condi- Grubbs v. 373 So.2d " 1979). case, person tion” that Short would emphasized [his] ‘submit In another the court place ... of residence ... to search proba [and] that search and seizure conditions on time, any with or without a "sparingly imposed search warrant tion should be and ... by any ... ... having reasonably law enforcement officer related to the offense for which grounds reasonable to believe contraband is the defendant was convicted” and that where ” met, present.' requirement was and the condition clearly explained signing, was himto before instance, leading 2. explains For a treatise provision was enforceable. State v. Mor provisions apply view is that consent 818, 285, gan, 206 Neb. 295 N.W.2d 288-89 only by parole probation to searches or offi- (1980). suggested Another court has officers, by police cers and not to searches but provisions search and probation seizure contrary. also cites cases William E. agreements may "except pro be valid when Seizures, Ringle, Searches and Arrests and fraud, duress, fear, cured or intimidation 31, (2d § 17:8 & n. at 17-32 merely or it is Confessions a submission to the when ed.2004). At least two cases hold that search State, supremacy of the law.” Rivera v. 667 provisions probation conditions 1996). (Ind.Ct.App. N.E.2d 766 There is People coerced and cannot be enforced. See briefing no factual record and no before us Peterson, Mich.App. v. 62 233 N.W.2d explore that would allow us to these interest (1975); State, v. 534 S.W.2d Tamez ing permutations of the consent issue. (Tex.Crim.App.1976). Yet another instance, probation court has ruled that a party, condition 3.No for asks us to revisit may only Racing be enforced to the extent Fitzgerald, there is Ass’n Central Iowa v. Ochoa, suspicion (Iowa 2004), traditionally reasonable and when N.W.2d 1 792 N.W.2d Pals, required. (Iowa search warrant has not been Com- 805 N.W.2d 767 LaFrance, 2011), Baldon, monwealth v. 402 Mass. or State v. 829 N.W.2d 785 (1988). (Iowa 2013). approach N.E.2d Another is (Iowa Pals, 767, 771 v. 805 N.W.2d It is clear State tion, at 284-86. 792 N.W.2d see 2011). the caselaw of may look to claiming to the district We that Short was states, dissenting opinions of state required for other a warrant was court that courts, secondary and to mate We and federal Iowa Constitution. under the See State appeals persuasive power. court of rials for their with the agree therefore (Iowa Baldon, 785, 792-800 appeal on 829 N.W.2d presented the issue 2013) secondary (considering Lamasters v. sources See adequately preserved. (“If Ochoa, (Iowa 2012) states); from other State, court decisions 821 N.W.2d (discussing court at state that the 792 N.W.2d ruling the court’s indicates caselaw, necessarily dissenting opinions, ruled federal the issue considered in- it, reasoning commentary). is even if the court’s academic on has been the issue complete sparse, or Principles of Inde- B. Established (Internal marks quotation

preserved.” pendent State Constitutional Paredes, omitted.)); 775 N.W.2d State 2009) (“[W]here Law. (Iowa question by the district upon and ruled is obvious party Neither has Introduction. court, preserved.”). adequately the issue is sought responsi to limit our questioned the Iowa bility independently construe Warrantless Searches Y. party, example, Neither Constitution. by Law of Probationers Homes that this court’s suggested appeal has Officers. Enforcement law as out approach independent state larger question Introduction. The A. Ochoa, Pals, incor or Baldon is lined may law enforcement officers of whether approach Our rect or should be modified. home without a val- probationer’s search a state constitu reviewing independent facts of this case warrant under the id thoroughly explored tional claims was subsidiary resolution of two depends upon Baldon, Baldon, Pals, and Ochoa. whether a question The first is questions. J., concurring (Appel, at 803-35 probationer’s home warrantless search of 771-72; Pals, specially); 805 N.W.2d when, here, reasonable permissible as is 264-67, Ochoa, 287-91. activity present. is If of criminal suspicion clarity emphasis, purpose For the yes, a second question the answer to this indepen of our principles we review the whether law question emerges namely, jurisprudence re dent state constitutional — officers, from distinguished enforcement as in these cases. flected officers, the search. may conduct probation original 2. constitutions as the States’ rights; individual the Feder protectors issues under considering these of the state the Iowa al Constitution as article section 8 of Constitu of follower outset, that tion, At the we note independently decisions tradition. we reach our the Federal analysis. state constitutions and not constitutional We of federal of course, original were the sources persuasive the Constitution may, of consider Baldon, See by rights. no written constitutional precedent, of but we ness federal J., Ochoa, concur (Appel, 792 829 at 803-09 by it. See means bound (“The eight state ring specially). example, For degree to which we N.W.2d at 267 related to provisions constitutions had prec follow United States adoption the of edent, prior and seizure any precedent, depends other Bernard Constitution. us with Federal solely upon ability persuade its decision.”); Schwartz, Mankind: Rights The Great see also reasoning of of 482 Jr., Rights Bill of J. Brennan the American State Constitutions History

A of ed.1992). Adams, John who (expanded Rights, the Protection Individual of (1977). in argument by James Otis attended oral by Harv. L.Rev. As noted Case, was the article area, Paxton’s leading scholar in the there is now drafter of Massachusetts Constitution XIV the an emerging consensus that the Federal of of state important constitu one Bill Rights originated of state and colo- of Fourth Amend precursors tional rights guarantees. of nial See Robert F. Baldón, at 805-06. ment. Williams, The State Constitutions of convention, Founding Pennsylvania’s Decade: Radi- At the federal rights issue of individual cal 1776 and Its whenever the Constitution Influences arose, repeatedly expressed Constitutionalism, the founders Temp. on American they (1989) (“Constitutional that looked to the states for the view L.Rev. rights. of individual preservation long have recognized many scholars that of that purpose declared of James Wilson the features of the United States Constitu- “ preserve rights ‘to of the states was tion were modeled on the earlier state ” Baldon, 829 N.W.2d at individuals.’ 808 constitutions.”). provisions of the Bill the Federal (quoting 1 Records Conven Rights, including the Fourth Amend- (Max ed., Farrand tion ment, by were modeled state constitutional 1937)). Ellsworth, Oliver who would later provisions and not vice versa com- as is of the become Chief Justice United States monly assumed. See Steven G. et Calabresi Court, declared at the constitu al., Rights State Bills 1791: “ tional convention that ‘he turned his Rights What Individual Are Really Deep- “ ” eyes’ governments ‘for the state ly History Rooted in American and Tra- ” preservation rights.’ of his Paul Finkel- dition.?, 85 S. Cal. L.Rev. Gottlieb, Stephen man & E. Introduction: (2012) (noting rights in the Federal State and American Liber Constitutions Bill Rights emerge from state and colo- ties, Liberty in Toward a Usable Past: rights). nial bills of (Paul 1, 4 Under State Fink- Constitutions Strong emphasis on individual 1991). eds., Stephen elman & E. Gottlieb rights under the Iowa Constitution. The Madison, James in The Federalist No. “ rights bill of in the Iowa Constitution was powers declared reserved to ‘[t]he not considered Iowa constitutional writ- the several States will extend to all the appendage ers as some kind of controlled which, objects, ordinary course of interpretations. federal court Unlike affairs, lives, liberties, concern the Constitution, rights the Federal the bill of Baldón, properties people....’” of the part of the first articles of the Iowa (quoting N.W.2d at 808 The Federalist No. (John (James Madison) of 1846 and Accord- Constitutions 1857.4 C. Ham 1868)). Ells, ing ilton George Chair of the Committee Rights, on the Preamble and Bill of “the primary Given the role of the states Rights Bill of is of more importance than developing rights, individual it is not sur- all the other clauses in the Constitution that, prising “prior adoption put together, because it is the foundation Constitution, rights federal each of the security upon written the people and which eventually recognized in the federal Bill of rights.” their 1 The Rights protected had been in rest Debates the previously of one or more state constitutions.” William Constitutional Convention the State of of 4. We will refer to the Iowa Constitution of 1857 as the Iowa Constitution. law,’ 1857) of shall process words ‘due (W. the [i]f rep., [here- Lord Blair judicial recognized by our in time be Debates], www. available at

inafter The they really do to mean what tribunals statelibraryofiowa.org/services/collections/ [t]hen, sir, that infamous Fu- ... mean I, section Article law-library/iaconst. nu[l]lity, become a Slave Law will gitive Declaration of Virginia from the borrowed trample will its people the American and rights” that “inalienable speaks of Rights, in the dust. enactments odious majo- the reach of beyond presumably Const, art. course, See Iowa time the government. during period ritarian Id. Of Rights I, 1; upheld Declaration of the Virginia § States Court at- (1776), Law from constitutional http://www.archives. Fugitive Slave available See, Booth, e.g., tack. Ableman gov/exhibits/charters/virginia_declaration_ How.) (21 169, 177 16 L.Ed. I, of 8 of the Article section rights.html. (1858) (“[T]he commonly Congress act of mirrors the lan- of 1857 Iowa Constitution is, in all of its fugitive the slave law called except Fourth Amendment guage of the fully by the Consti- authorized provisions, between placed that was for a semicolon States_”). tution of the United and the warrant reasonableness clause the Compare in the Iowa Constitution. celebrated, clause been the first As has often Const, Const, IV, with Iowa amend. of the Ter- U.S. decision of I, suggests Iowa, rejected ritory Ralph, § This semicolon In re art. of in a free state present a relation- a slave that there was claim that framers believed master, noting returned to his clause should be the reasonableness ship between the free Iowa law a slave within that under clause, much as was the the warrant and “property” is not territory of Iowa search and seizure original with the case illegal restraint regarding that the laws Massachusetts Constitu- of the provision men of all colors and conditions.” apply “to Ochoa, of 1780. See tion (Iowa 1839). Counsel 1 Morris & n. 7. organic urged that as a result of Ralph Indeed, evidence that powerful there is to the territorial (specifically referring law generation did not the Iowa constitutional Iowa), constitutions of Wisconsin mirror simply that Iowa law should believe Specifical- at 2. was a free man. Id. Ralph While the interpretations. court federal organic asserted that under ly, counsel of article section 9 of process clause due Wisconsin, man “‘[n]o Iowa and law of was similar the Iowa Constitution proper- deprived liberty, of his or shall be States of the United Due Process Clause peers, of his ty, judgment but Constitution, the clause Ells noted (quoting Id. the law of the land.’”5 the domi- again again art. in 32 was “violated Ordinance of Northwest land, Congress rough- in the which rides the Continental party nant Journals of ed.1936) (Roscoe Hill, 1771-1789, R. freemen.” The at 340 the necks of ove[r] shod ]). ar- Further, He further Journals Ells noted [hereinafter Debates at 102. Wisconsin, turn, incorporated Territory Shambaugh, of explained by the bill of 5. As rights in the Constitution of of set forth the Northwest Ordinance provisions of "exceedingly Territory brief” of Iowa rights. Id. at which contained a bill of rights, incorporation solely consisted result, provisions of the "the 116-17. As granted the Ter- privileges, and immunities by implication made of 1787 are Ordinance Benjamin Sham- ritory F. of Wisconsin. Territory part of the Constitution History baugh, the Constitutions Iowa.” Id. at 117-18. (1902). The Constitution of Iowa law, the organic that under “There would not have gued recep- received favorable slavery involuntary be neither nor tion. shall territory....” said

servitude Id. independent authority The of state 1787, (quoting the Northwest Ordinance of courts to state pro- construe 343). art. Journals precedent visions free from federal Owen, early recognized in McClure v. held for Ralph. Iowa court Id. at 7. (1868). McClure, Iowa 254-55 we however, In closing, emphasized the court stated: person “illegally that when a restrains principles The same require being liberty, human of his it is proper federal courts to follow the decisions of laws, equal that the which should extend statutes, the State courts in construing to men of protection all colors and condi law, recognize and to of rules local re- tions, should exert their remedial interpo quire the federal courts to follow the Id. The Ralph sition.” decision in In re given construction Constitu- [state] flatly contradicted the infamous Dred Scott highest tion state tribunal. decision of the United States Court 1857. See Sanford, Dred Scott v. celebrated, Id. at 255. As is often our (19 How.) 393, 451, 60 U.S. 15 L.Ed. subsequent cases dealing rights with the of (1856) (“[T]he right property of in a African adopted Americans an approach slave distinctly expressly affirmed much different than the United States Su- Constitution.”), in the superseded by con preme ultimately adopted in Plessy amendment, stitutional U.S. Const. 537, 540-52, Ferguson, 163 U.S. 16 S.Ct. XIV; Ralph, amend. In re 1 Morris at 7. 1138, (1896) 1139-44, 41 L.Ed. 257-61 (upholding requiring state law separate “WhileDred Scott was decided after the equal but accommodations for white and Iowa Constitutional Convention of 1857 ad- railway passengers nonwhite as constitu- journed, legislature first state con- against challenges tional under the Thir- vened under the new Iowa Constitution Amendments), teenth and Fourteenth expressed its view on the Dred Scott deci- overruled Brown v. Board Edu- sion reasoning. and its legisla- Iowa cation, 483, 494, ture declared a resolution that “the case (1954) 98 L.Ed. 880-81 (rejecting the Scott, binding Dred is not in law or separate equal but doctrine in the context upon government conscience people education). public Coger v. Nw. States,” of the United Co., Union Packet 37 Iowa 154-57 we ungrateful should be to those whose (citing article section of the foresight provided care and for us free Iowa rejecting Constitution in the notion homes, duty and derelict in our to those that African subjected Americans could be us, who still come after did we not public different treatment in transporta- promptly sternly denounce this new tion); Dirs., v. Bd. Clark 24 Iowa doctrine, established, if degrades which (1868) (rejecting the argument that the free states. a school district could forbid African 1858 Iowa Acts Res. at 433. We have American children attending from school race). not found a record Tonn, of the debate on the ground on the In State v. resolution, but there is little doubt that an emphasized that we were free to depart argument that Iowa analysis courts should defer to from federal constitutional in con- Dred interpretation Scott in the sidering provision the search and seizure presumptively Constitution as valid of the Iowa Constitution. See 195 Iowa

485 (1970) (1923) 446, (Harlan, J., 530, 104-07, 474 535-36 26 L.Ed.2d 191 N.W. the al- dissenting) (recognizing decision to weight of state (recognizing the decided jury “simply the person low six reflects against the rule of a federal case authority in scope lowest common denominator the forge a differ- determining we would by trial right jury”); and function of the to grounds by abrogated on other path), ent Louisiana, 145, Duncan v. 391 U.S. 182 n. 654-55, Ohio, 643, 81 Mapp v. 367 U.S. 21, 1444, 21, 20 88 1466 n. L.Ed.2d S.Ct. 1081, 1684, 1691, 1089-90 6 L.Ed.2d S.Ct. (1968) J., 491, (Harlan, 21 514 n. dissent- (1961). major “a of the ing) (noting danger ‘incor- 4. The in diminution substance offed- provisions the poration’ approach of —that resulting incorporation rights eral from may Bill of be watered down in the Rights independent state con- triggers renewal of uniformity”); Ker v. pursuit needless v. Beginning law. with Gitlow stitutional 23, 45, 1623, California, 83 374 U.S. S.Ct. York, Supreme New the United States (1963) 1646, 726, (Harlan, 10 L.Ed.2d 745 began incorporate against the Court J., concurring judgment) (pondering Bill of the provisions states various Supreme whether the United States Court Due Clause of Rights under the Process prepared relax Fourth Amend- “[was] Amendment. 268 the Fourteenth U.S. unduly ment to avoid standards order 652, 666, 625, 630, 1138, 45 L.Ed. S.Ct. 69 States”). the fettering (1925) (“[W]e may and do assume 1145 seen the We have federalism discount speech press— that freedom of and of the by operate Justice Harlan predicted protected by the First Amend- which full force in the search and seizure context. Congress from abridgment by ment —are incorporation, relatively Since the clear re- ... among protect- the rights fundamental quirements of the Clause have Warrant by the Due of the ed Process Clause by notions vague been overridden of rea- impairment Amendment from Fourteenth sonableness, the of consent has role states.”). incorporation changed its to a beginnings from narrow however, Rights, Bill of created tenden- formulation, protean more and the exclu- cy for the States United sionary substantially rule has been eroded rights to dilute the substance them- exception. aby good faith See California Baldón, selves. See 813 582-83, Acevedo, 565, v. 500 U.S. 111 S.Ct. (“In period following incorporation (1991) 1982, 1992-93, 619, 114 L.Ed.2d is ending Mapp, revolution "with there no (Scalia, J., concurring judgment) (recog- strength scope doubt of the nizing development nearly two dozen protection Fourth has been Amendment’s exceptions requirement); warrant dramatically reduced States Leon, v. 468 U.S. 923- United States Court.”). Any review re- 24, S.Ct. L.Ed.2d lationship between state and federal con- (1984) “good faith ex- (announcing fails to interpretation stitutional un- rule); exclusionary ception” this fundamental and ignores derstand Bustamante, Schneckloth U.S. powerful legal riptide flawed. 234-46, 2041, 2056-58, 36 L.Ed.2d opinions, In a series of Justice Harlan (departing from the presciently predicted that one of the unin- narrow consent doctrine established Zerbst, 458, 464, tended of the extension of consequences Johnson v. 304 U.S. 1019, 1023, rights federal to the states S.Ct. 82 L.Ed. (1938)). Baldón, generally

would be their dilution. Flori- Williams da, (“Nothing in N.W.2d at 812-14 the Su S.Ct. 486 incorporation independent doctrine as it dreds of state constitutional

preme Court’s cases, the Fourth Amendment altered search and the number related to seizure nature of state constitu independent grows tendency over time. Because of the related to search and sei provisions tional Supreme of the United States Court provisions of the of Incorporation .... zure underenforce or dilute search and seizure Rights of the United States the Bill of principles, argued it can be these through against states Constitution precedents weight “entitled to less of the Fourteenth Due Process Clause than other interpreting state decisions a federal floor re Amendment established provisions.” similar state constitutional law liberties.”); George Thom lated to civil C. Black, 137; Williams State cf. III, Worlds Col as When Constitutional (Tenn.1991) 166, (Reid, C.J., S.W.2d Resurrecting the Framers’ Bill lide: of concurring part dissenting in part) Procedure, 100 Mich. Rights Criminal (“Tennessee constitutional standards are (2001) (observing that L.Rev. 150-51 step not destined to walk in lock Rights, of the Bill of incorporation after uncertain and fluctuating federal stan Bill Rights] “the of of flowed [the dilution relegate dards and do not Tennessee citi process and that “the of in backward[s]” zens to the lowest levels of constitutional corporation sledgehammer took a to the protection, guaranteed by those the nation procedure guarantees”). federal criminal constitution.”). al Williams, According to Professor decisions growth independent of state consti Supreme of the States Court de law, however, tutional has not been univer clining recognize rights always “must be sally celebrated. As Professor Williams partially viewed as attributable to ‘under- bemoaned, adoption independent ” has of enforcement’ as a result of federalism occasionally state constitutional law has and other institutional concerns that ex provoked what Williams has called “bit plicitly implicitly pervade Supreme or ter, accusatorial” dissent. Williams Williams, Court decisions. Robert F. Scott, (citing People v. 79 N.Y.2d Law American State Constitutions N.Y.S.2d 593 N.E.2d (2009) Williams]; [hereinafter State cf (1992) (Bellacosa, J., Yet, dissenting)). as Hunt, 91 N.J. 450 A.2d twenty years ago was noted in connection (Pashman, J., concurring) (noting hesitan law, with independent state constitutional cy of the United States Court “to “heightened rhetoric nothing adds impose on a national level far-reaching jurisprudence of our State.” State v. Ca binding constitutional rules on each and nelo, 139 N.H. 653 A.2d state”). every (1995) (Johnson, J., concurring specially). As a result United States Su- And, according leading authority to a on preme retreat in the Court’s search and constitutions, state writing area, seizure there has been a sizeable concern legitimacy relying about the growth independent state constitutional guarantees state constitutional “has large survey jurisdictions law. A in 2007 Tarr, ly put been to rest.” G. Alan Under that a supreme found the state (1998). standing State Constitutions 169 departed courts have from United States precedents aggressive, 5. The maximalist charac- in the search lockstep approach “precommit- and seizure area to ter as degree. some Gorman, generally Michael J. Survey: preventing independent ment device” ex- Analogs, State Search and One question Seizure amination and law. offacts (2007). Miss. L. engage J. 417 There are now hun- is whether state courts should world,” allowing constitutional when analysis down state independent to decide whether to embrace states their state constitu- language of when the legal claims can inform accept innovative or identical to are similar provisions tional Supreme when the United States Court ample There is counterparts. their federal federalize the rule. considering whether to the mere the notion that precedent (internal quotation marks Id. at 712-13 prevent not language does similarity of omitted). independent engaging from state courts See, Gerschoffer, v. e.g., State analysis. Indeed, Williams, according to Professor (“The (Ind.2002) 960, N.E.2d 965 763 prece- law to federal lockstepping state unique vitality, has Indiana Constitution ap- not a humble or minimalist dents is lan- parallel words federal even where its aggressive is an and maximal- proach, but Barber, 378, N.Y. v. 289 guage.”); People to the law. See approach ist Williams (1943) 329, (recognizing 331 46 N.E.2d (discussing problems several to the 224-29 independent to exercise court was bound approach). It amounts to lockstepping constitution); under the state

judgment refers to what Professor Adrian Vermeule 633, 319 Arrington, 311 N.C. pre- “precommitment device” as (1984) (noting the court S.E.2d supreme vents a state court from consider- States Su- by not bound the United independent each case based on an ing identical construction of preme Court’s of facts and law. See Adrian examination provisions); Commonwealth Vermeule, The Power in the State Judicial Edmunds, A.2d 526 Pa. (and Federal) Courts, Sup.Ct. Rev. was free to (stating the court 894-95 (2000). 357, 366 con- Supreme Court reject United States irony appeal The double in the the Fed- if remained faithful to clusions it state law uniformity. independent guarantees). minimum eral Constitution’s of the val- question also address the cases language parallel The notion that First, uniformity. it is doubtful that ue of to United is not tied Iowa Constitution value in a uniformity is a constitutional interpretations Supreme States Court Indeed, diversity of con- system. federal powerfully area was the search and seizure into the consti- analysis is baked stitutional by Judge Sutton of the United endorsed sovereign where retain tutional cake states of for the Sixth Cir- Appeals States Court delegated not authority questions over cuit, article: published who wrote in a government by the United the federal think, an inter- There is no reason to as noted Profes- As States Constitution. matter, guar- that constitutional pretive Williams, of the reliance on decisions sor sovereigns, even independent antees of interpret Supreme States with the or similar guarantees same provisions is “mis- state constitutional words, be construed the same. must delegation an “unwarranted placed” and that a is there reason to think Still less Supreme Court.” Rob- power state such as guarantee, highly generalized Williams, In ert F. Court’s searches, on “unreasonable” prohibition Rejection Legitimacy State Shadow: just meaning range for a would have one Result, 35 Reasoning and Supreme Court differently sovereigns. situated (1984). In an era L.Rev. S.C. Sutton, renewal of federal- Does when societies advocate Jeffrey S. What Does—and state, Law, it is returning power to the ism U. Not — Ail State Constitutional (2011). for state exception that an is made Judge Sutton ironic L.Rev. Kan. “top- judicial power. live in a why asks we should further Acevedo, irony. Although the There is a second 500 U.S. at 111 S.Ct. at (Scalia, J., made that L.Ed.2d con- adoption claim is sometimes curring judgment). ap- Court’s the United States search and seizure area proach in the only If these right, authorities half uniformity or will ease of admin- promote incorporation body of the of federal law istration, opposite is in fact true. under the Iowa will incorpo Constitution jurisprudence Consider this. confusion, certainty. rate State Cf. Supreme Court in the United States Caraher, 293 Or. 653 P.2d area has been charac- search and seizure (1982) (“Eight years of uniformity with merely as “not com- terized scholars not, Supreme U.S. Court decisions has contradictory, per- but often plex and however, brought simplification to the law Amar, Akhil Reed Fourth verse.” state.”); of search and seizure in this Principles, First 107 Harv. Amendment Planned Parenthood Middle Tenn. v. of (1994).6 757, L.Rev. These descrip- 758 (Tenn.2000) 1, Sundquist, 38 S.W.3d 14-15 resulted, in part, tions have because the (noting Tennessee constitutional standards Supreme applied United States Court has designed lockstep not to walk in with “un analytical at least five different models to standards”); fluctuating certain and federal cases, search and seizure based upon (Utah Jackson, 545, 937 P.2d 550 requirement, suspi- warrant individualized Ct.App.1997) (noting two Supreme Utah cion, case-by-case analysis, balancing departures Court from United States Su test, an approach relying and on common preme Court search and seizure precedent, plus balancing. law See Thomas K. Clan- purpose done for of establishing more cy, The Fourth Amendment: Its History courts). police workable rule for and trial (2008). Interpretation and 470-511 Even Friesen, generally 1 Jennifer State members of the Court have Constitutional Law: Litigating Individu ju- Claims, characterized its Fourth Amendment al Rights, and Defenses (4th risprudence l:03[4][b], ed.2006) § as “an inconsistent jurispru- at 1-16 [herein dence years.” that has been with us for after (“Independent holdings Friesen] expressed 6. Other step commentators have similar junkyard”); and a closer to the Donald juris criticism of Federal Fourth Amendment Pongrace, Stereotypification R.C. the Fourth of See, prudence. e.g., Ronald J. Allen & Ross Amendment’s Distinction: An Public/Private Rosenberg, M. The Fourth Amendment and the 1191, Clarity, 34 Am. U.L.Rev. Opportunity for Theory: Limits Local Versus General Theo (1985) ("in of 1208 a state of theoretical 1149, 72 St. John’s L.Rev. Knowledge, retical chaos”); Solove, Daniel J. Fourth Amendment mess"); (1998) (“a Craig 1149 Bradley, M. 1511, (2010) Pragmatism, 51 B.C. L.Rev. 1511 Amendment, 83 Two Models the Fourth of ("riddled inconsistency and incoher- 1468, (1985) (“a Mich. L.Rev. mass of ence”); Steinberg, David E. The Uses and obscurities”); and contradictions Thomas K. 10 U. History, Misuses Fourth Amendment of Clancy, Concept The Fourth Amendment's of (2008) ("doctrinal Pa. J. Const. L. Reasonableness, 2004 Utah L.Rev. incoherence of Fourth Amendment law” "dis- (2004) ("irreconcilable”); Friesen, Jennifer scholars”); many judges turbs and Silas J. State Courts as Sources Constitutional Law: of Seidman, Wasserstrom & Louis Michael Independently Wealthy, 72 No How to Become Theory, Fourth Amendment as Constitutional (1997) ("illogical tre Dame L.Rev. (1988) ("inconsistent 77 Geo. L.J. and Kerr, unwieldy”); and Orin S. Four Models results”); Wilkins, bizarre and Richard G. Protection, 60 Stan. L.Rev. Fourth Amendment Defining Expectation (2007) ("remains the ''Reasonable Priva- remarkably 504-05 Luna, cy": Emerging Tripartite Analysis, An opaque”); Erik G. Sovereignty and Sus (1987) ("distressing- Vand. 48 Duke L.J. L.Rev. picion, ("more ly unmanageable”). tape duct on the frame Amendment’s tions, guilty legal malprac- do, should be can, bring stability and the states tice.”), grounds by disapproved on other the face law in to constitutional simplicity Owens, Or. 729 P.2d State baffling inconsistencies frequent, (1986). Yet, ago, an over two decades doctrines.”). 531 changes writing appellate lawyer, experienced Indeed, re stronger, clearer warrant Review, Law pages in the of the Drake by Short as advocated quirement, such be no ex- “ignorance should declared less, uni case, greater, create will American law” century in the third cuse certainty. formity and state lawyers develop the failure of law burdens on 7. The enforcement from arguments different uniformity does The lack of lawyers. that between precedents, noting federal profes- a substantial burden not create hun- there were over three 1971 and 1986 who now receive enforcement sional law departed cases where state courts dred training are assisted professional interpreta- in the precedents from federal attorneys in their law county well-educated constitutional law. See Bruce tion of state Further, law en- enforcement functions. Rights Clause Kempkes, The Natural of acquainted need to be forcement officers Law When the Sits the Iowa Constitution: standard, namely, whatever one only with L.Rev. 656-57 Tight, Too 42 Drake 1 Fries- restrictive. See standard is most (1993). independent The number of state 1.03[4][b], simply § 1-15. There is en exponential- grown constitutional cases has that Iowa law enforce- no reason to believe of ly since then. Conference counterparts than its capable ment is less passed urging Justices a resolution Chief York, Jersey, New in states such as New law schools to teach state constitutional indepen- where Washington, Oregon, law, that state noting, among things, other “ em- law has been dent state constitutional rights ‘are guarantees Baldón, courts. See by braced the state federally greater guaranteed than often ” at 814-15. 829 N.W.2d that rights and liberties’ individual “ lawyer independent ‘being competent and effective It could be asserted that understanding of both the requires an law creates a burden state constitutional state constitu- instance, Federal Constitution and teaching opin- For lawyers. ” Williams, Why law.’ Robert F. tional ago suggesting ions written decades Matter, Eng. 45 New State Constitutions by fail- lawyers might malpractice commit omitted). (citation L.Rev. theories state constitutional ing pursue See, e.g., State may provoke criticism. “competent required to be a work 996, 1013 Lowry, 295 Or. 667 P.2d by the lawyer as envisioned and effective” (1983) (Jones, J., concurring specially) not over- of Chief Justices is Conference recognize ... lawyers ... should (“Oregon by noted Jennifer Friesen whelming. As majority’s philosophy that under on state constitu- important in her treatise by law, reflections the United lawyers may reject- the most recent find cases tional they checking ... should not Supreme by simply States Court ing precedents federal changes § in feder- upon the 2 Friesen 11.01 rely substantial relevant citations. See recently readily cases decided n. at 11-4. In addition al constitutional caselaw, Any very now a Supreme States Court.... there is the United searchable readily an accessible second- large who fails to raise Ore- volume lawyer defense every discussing just about solely ary materials violation and relies gon Constitution A law. dili- of state constitutional aspect under the federal parallel provisions ready has access constitution, gent lawyer thus to exert federal limita- except Baron, Baker necessary develop state con- v. State and the Promise materials Federalism, arguments. law the New stitutional Judicial 43 B.C. (2001), L.Rev. our independent a solution in as 8. “Criteria” authority to construe Iowa Constitu- independent state consti- problem. generally tion not mean that we does re- also address the issue of tutional cases fuse to follow the Supreme United States whether there should be some kind of “cri- example, Court decisions. For in State v. engages court teria” before a state inde- Breuer, rejected approach of anoth- analysis. As Professor pendent legal required physical er state court that out, pointed Williams has often un- “[t]he presence of a warrant at the location of a premise Supreme that U.S. court stated judicially authorized search or seizure. Rights the federal Bill of interpretations of (Iowa 2012). We interpreting correct for presumptively approach determined that the of the Unit- analogous provisions simply state provided ed States wrong.” Williams at 135. Williams notes persuasive reasoning. most See id. at Paul John Stevens referred to Certainly 197-201. adoption appropri- duty” which “misplaced sense of occurs ate precedents federal that “illuminate when a state court believes the boundaries open provisions” textured of a state consti- of its state constitution are marked compromise tution is not a of the court’s interpretation Court in its obligation to independently construe the (cit- Federal See id. at 170 Constitution. Lamme, provision. 216 Conn. Arsdall, 673, ing Delaware v. Van 172, 484, (1990). 579 A.2d 490 We should 699, 674, 89 L.Ed.2d adopt approach feel free to of persua- (1986) (Stevens, J., dissenting)). 696 As sive precedent federal but should “never by noted Justice Utah Chief Christine compelled feel parrot” interpre- federal Durham: Garcia, tations. v. Davenport 834 S.W.2d analysis Independent begin must (Tex.1992). 4, 20 What is required under rely the constitutional text and on what- Constitution, the Iowa in each every legitimate may ever assistance sources us, case that comes before is not mere provide interpretive in the process. potentially analogous identification of a There is no that federal presumption best, precedent, federal but of exercise our language construction of similar is cor- independent judgment of the proper pa- rect. rameters of state constitutional commands. Tiedemann, 1106, 162 P.3d 1114 (Utah 2007); State v. Kennedy, see 295 Or. In addition arising from a substan- 260, (1983) 1316, P.2d 1322 (noting 666 tively premise, approaches flawed criteria sequitur “the non that the United States further have potential complicate Supreme Court’s decisions under Fed- [the judicial and distort the nature of decisions eral Rights] only Bill of not deserve re- by encouraging discussion elaborate spect presumptively but fix its correct nature of the arcane criteria itself rather constitutions”). meaning also in state than the underlying broad values the con- While it has been provision. observed that stitutional Williams at Cf. opinion result, “[c]itation to a federal ... too of 167-68. As a one of the states that ten serves as a substitute for the developed approach, consid first a criteria Wash- ered reasoning that accompany ington, emphasized should has now that the crite- particular interpretation only of a state’s consti ria are “nonexclusive.” v. Fi- Sofie tution,” Lawrence Friedman & Corp., Charles H. breboard 112 Wash.2d 771 P.2d Wethered, declarations are (1989) one-person court whose v. (citing State (1988)). Further, in all cases. we have binding 755 P.2d 110 Wash.2d may apply open that we textu emphasized advocacy preser 9. Limitations of than the stringently more al standards development Notwithstanding vation. federal caselaw under the Iowa Constitu law, in constitutional state independent 883; Bruegger, tion. See N.W.2d an lawyers do advocate many cases Fitzgerald, Iowa v. Racing Ass’n Cent. standard different constitutional (Iowa 2004). general federal stan generally accepted from the P’ship ly Fair Isuzu Cadillac-Oldsmobile we have prudence, matter of dard. As a Bailey, 229 640 A.2d v. Conn. in these cases that approach adopted (“[I]t adoption, is clear that our urged general standard we will utilize analysis, of state constitutional purposes right but reserve parties, framework used under the analytical an in a fashion different the standard apply Baldon, preclude does not us 829 federal constitution caselaw. See than the federal concluding of this from that a statute would at 822-28. As N.W.2d Edouard, such an court noted State valid under the federal constitution is be See State practice. is sound invalid under our state consti approach nevertheless — — - -, Edouard, Edouard, 2014 WL tution.”); N.W.2d 2014). (Iowa There can often be J., concurring specially); Malan v. (Appel, judges (Utah 1984) among (al Lewis, considerable difference P.2d open textured application courts in the equal protection and federal though state such as “reason principles incorporate general the same provisions basis,” ableness,” ex “reasonable “rational framework, applica our construction and “totality of circum privacy,” pectation equal protection provision tion Utah stances,” no many others.7 Where courts); controlled federal Rob is not ap framework party questions general Williams, Equality F. Guarantees in ert case, may disagree with in a plicable Law, 63 Tex. L.Rev. State Constitutional of that application courts in the federal (1985) 1195, (noting methodology 1219 of Bruegger, v. 773 principle. See State in applying courts federal constructs state 2009). (Iowa 862, As noted 883 N.W.2d reaching but results that con dependently York Kaye Judith of the New Court Judge courts). federal flict with disagrees with of when the court Appeals, cases, we have vindicated In some “our consid precedents, of application and seizure viola claims based on search attack for judgment hardly justifies

ered States Constitution tions under Scott, 79 People v. principle.” lack of the Iowa Constitution. See State and not 920, 474, N.Y.S.2d 593 N.E.2d N.Y.2d 583 (Iowa Kooima, 202, 206 v. 833 N.W.2d (1992) J., 1328, concurring). (Kaye, 1347 288, 2013); 292 Tyler, State v. 830 N.W.2d of only way possibility to avoid 2013). (Iowa cases, we found it In these applica over the judgment differences whether there unnecessary to address general principles to open tion of textured the Iowa any were violations under Consti are a num at hand where there the facts 206; Kooima, Ty- 833 N.W.2d alternatives is to have tution. plausible ber of Iowa, courts, instance, N.W.2d 4- including Racing Ass’n Cent. 675 many 7. For state Iowa, Police, 7; Dep’t have on remand from a reversal Mich. State Sitz on federal con- United States (1993); Op 216-17 506 N.W.2d issues, previous rea- followed their stitutional (S.D.1976). perman, N.W.2d See, e.g., soning the state constitution. under Kooima, ler, parolee. at 292. we cause of his status as a See id. at where a party Although pa- stated that “even 538-39. expressly Cullison involved a different standard for rolee rather than a probationer, has not advanced see id. at provi- analytic a state constitutional structure of interpreting ap- Cullison sion, may apply plies equal we standard more force to both. The funda- question than federal caselaw.” 833 mental before stringently today the court holding analysis at 206. A similar statement was whether the Culli- presented Tyler. 830 N.W.2d at 291-92. son under the Iowa Constitution continue good do not think the resolution of these to be law or whether We we should aban- federal law be con- it in resulting cases under should don favor of the innovations qualifying overruling strued as or what from the United States Court’s Tyler characterized as what “we have con- reconstruction of search and seizure doc- “ stated,” sistently namely, ‘jeal- that we years. trine recent ously protect authority this court’s to fol- C. Pre-Cullison Caselaw. Prior ” independent approach’ low an to claims Cullison, our decision in the caselaw re- made under the Iowa Constitution and garding required whether a warrant was right that we reserve the even in cases searching before the home of a probation- parties where do not advocate a different parolee er or was inconclusive. Some apply differently standard to the standard jurisdictions cases from other held that a than Id. precedents. (quot- federal at 291 probationer parolee had lesser constitu- 771). Pals, ing 805 N.W.2d at To the rights tional than generally. citizens any lingering extent there are notions to Follette, U.S. ex rel. Randazzo reject the contrary, explicitly we them to- (S.D.N.Y.1968) F.Supp. (finding pa- day. powerful role to be a in determining factor search); and application validity People v. Her- Reaffirmation precedents nandez, to Iowa issue Cal.App.2d Cal.Rptr. presented in this case. Our recent cases (determining the reason- Cline, Ochoa, Pals, Baldón, probable and the ableness or requirement cause special concurrence in Edouard outline our apply parole supervisors did not when approach independent parolees). hand, state constitu- searched On the other tional See, law under article section 8 of contrary authority. there was e.g., (5th Constitution as summarized above. Kearney, Brown v. 355 F.2d Cir.1966) Today, again principles. reaffirm these (finding parolee is entitled to To the extent our cases can protection be read as constitutional illegal from having implications seizure); contrary Overall, to the above People search and v. 7 approach, they specifically 153, 225, are overruled. MichApp. (1967) (invalidating warrantless search of Turning question us, now to the before parolee). example, For in United States v. precedent Iowa constitutional under Lewis, a federal district court that a held article question section 8 on the parolee’s search of a apartment without a whether a required warrant before law invalid, warrant was absent consent of the may person’s enforcement search a home (S.D.N.Y. 184, parolee. 274 F.Supp. 187 based on person’s status is Cullison. 1967). Cullison, See 173 N.W.2d at In we Cullison, held that parolee however, did not suffer a diminu- At about the time of tion of protections constitutional from war- prominent there were two features of rantless simply search and seizures be- search and law in seizure both the federal

493 20, 33, 4, 6-7, 145, First, 70 L.Ed. 46 S.Ct. the United States U.S. state courts. (1925). empha- The Agnello 149 Court, court, expressed and this sized validly, obtained war- strong preference for founded, [b]elief, well that an however was summa- existing caselaw

rants. sought dwelling is concealed in a article 403 Hampshire, v. New Coolidge in rized house, for a justification furnishes no 454-55, 2022, 2032, 443, 91 S.Ct. U.S. warrant. place search of that without a (1971), 564, where the court L.Ed.2d unlawful And such searches are held noted: notwithstanding unquestionably facts rule in most basic [T]he showing probable cause. that searches conducted out- this area is 149; Id. at 46 S.Ct. at 70 L.Ed. judicial process, prior without side the States, v. accord Johnson United are judge magistrate, of a or approval 367, 369, 10, 14, 68 92 L.Ed. S.Ct. under the Fourth per se unreasonable (1948) of a warrant (emphasizing the role only few subject spe- to a Amendment — home). involving in and seizures search and well delineated cifically established addition, many years ago, we stated exceptions jealous- exceptions. protections that the in search and seizure drawn, narrowly and there must ly and given law were to be “a broad and liberal showing by exemp- those who seek be a interpretation purpose preserv- for the exigencies ... of the situa- tion that the liberty.” Height, ... 117 Iowa ing imperative. tion made that course (1902). A 91 N.W. broad omitted) (internal (footnotes quotation Id. interpretation and liberal search and omitted). marks Sheridan, was reflected in where seizure Second, emphasized impor- the cases this court was one of the first courts sanctity of the home in search tance of exclusionary nation embrace the rule in instance, jurisprudence. seizure For viola- connection with and seizure States v. United States District United 165-69, Iowa at 96 N.W. at tions. See 121 Court, the summarized the Supreme Court 731-32; Cline, see also State by noting “physical state of the law (Iowa 2000) (“An example against entry of the home is the chief evil attempts preserve of this court’s wording of the Fourth Amend- which the guarantee is spirit of Iowa’s constitutional 297, 313, 92 ment is directed.” 407 U.S. was one of in the fact that Iowa reflected 2125, 2134, 32 L.Ed.2d S.Ct. the exclusion- the first states embrace (1972). long ago emphasized Similarly, part an of its state ary integral rule as with constitutional liber- that in connection against unreason- protection constitution’s ties, stronger guar- higher there is “no and, fact, seizures, did able searches and home, papers, his anty than that of his years before the States so several United Sheridan, [personal] effects.” State decision Weeks [v. Court’s (1903). 164, 167, 96 N.W. States, 232 U.S. right that the asserted have declared We genesis of ]. 58 L.Ed. 652 to “thrust themselves into a of officers case, civil exclusionary rule was a Iowa’s “grave is a matter of concern.” Lee, (1876).”), home” Reifsnyder v. Iowa Brant, State v. 260 Iowa grounds by on other abrogated part (1967). Turner, 606 n. 2 630 N.W.2d (2001). States, the two Agnello In of State Cullison. requirement of the warrant and D. Overview

concepts specifically have not confronted merged. the home 269 We importance of Hernandez, may (quoting a be 37 at probationer Cal.Rptr. of whether question 103). search, subjected to a warrantless home a parolee considered whether but we have We then turned to the Iowa Constitu- to a warrantless search. may subject be II, tion. Id. at 537. We that article noted Cullison, subject parolee a to a In provides section 5 of the Iowa Constitution “ living quarters of his

warrantless search any that no ‘person convicted infamous by parole supervisor. a See 173 N.W.2d at crime, privileges shall be entitled to the ” appeal, petitioner argued 534-35. On Const, (quoting an elector.’ Id. Iowa art. I, the search violated article section 8 of 5). II, recognized § the plain We the Iowa See Defendant’s Constitution. II, language of article section 5 meant 20, Cullison, argument brief and 173 that, of an upon conviction infamous of- 53491) (Iowa 1970) (No. [here- N.W.2d 533 fense, the right defendant lost his vote inafter Defendant’s We held that Brief]. public or hold office. Id. We then de- parolee’s the warrantless search of the res- certainly, exception clared: “And with the Cullison, idence was invalid. governing of lawful conditions conduct at 540-41. probation, while on or parole no more upon onerous burden could be him cast so, In we first doing canvassed then- any subsequent conditional release a from existing involving federal and state caselaw penal (empha- institution.” Id. at 537-38 rulings the Fourth Amendment. under Id. added). sis We further noted that “the 535-36. We noted caselaw parol- fact that a criminal accused is also a generally camps: into divided two those not, ee should to a new separate as and “[djilute” “[s]trip” courts that either a crime, destroy or diminish constitutional parolee rights of Fourth Amendment safeguards people.” afforded all Id. at 538 validity recogni- those that afford full added). (emphasis rights parolees. tion of these Id. at 536. There question can be no that Cullison Cullison, strongly disapproved a holding involves under the Iowa Consti- strip and dilute cases. See id. We tution. The briefing before the Cullison strip stated that the and dilute cases were petitioner court reveals that empha- upon may based “what best be described I, sized article section 8 of the Iowa Con- rationalization, i.e., as socio-juristic pro- According appellant’s stitution. public tection of the and constructive cus- Cullison, applicable brief the “Law tody” sound, “constitutionally and were not Constitution, this area is found reasonable, necessary.” fair or Id. We I, Art. Sec. 8.” Brief at Defendant’s theory begins stated that the “dilution appellant argued further that “[u]nlike nowhere, being illusory ends at best Constitution, the U.S. the Iowa Constitu- evasive.” Id. We quoted approval specifically spells tion out the result or Hernandez, statement where the court penalty felony conviction as far as dimi- parolees declared that the notion that lose rights nution of constitutional are con- rights by their constitutional accepting pa- cerned, II, in ... Article Sec. 5.” Id. at 21. role “makes rights depen- Although it opin- is true that the Cullison upon dent kind ‘contract’ in which one expressly ion does not refer to article side has all the bargaining power” and that section adopted Cullison court II, better doctrine may analysis “[a] is that the state that article appellant’s section not attach unconstitutional provides conditions to 5 of the Iowa Constitution grant the of privileges.” only state Id. at 536- for persons sanctions convicted of a officer, been a would have provi- by probation A at 537-38. crime. has no bear- state constitution invalid.8 sion of the scope of the interpretation the ing on Cullison, giving in maxi holding result, As a rights. federal constitutional home, to protection mum constitutional the Baldón, expressly “[w]ithout stated in existing and was consistent federal so, based we decided Cullison saying See, e.g., Boyd state caselaw. United Baldón, 829 the Iowa Constitution.” States, 616, 630, 524, 532, 116 U.S. S.Ct. opinion). 2 (majority at 796 n. (1886) (noting pur the 29 L.Ed. brief, language in the Cullison Though pro is to of the Fourth Amendment pose strong unequivocal. and exceptionally is sanctity of “the of a against tect invasions drawing a precedent represents a clear It of life” from privacies home and the man’s searches regarding line bright rejected employes”), and its “government rationales “[SJoeio-jurisidic” home. Hayden, grounds on other Warden were unac- requirement evade the warrant 1642, 18L.Ed.2d 782 87 S.Ct. U.S. theory was “illuso- “dilution” ceptable; the Weeks, 390-92, (1967); 232 U.S. at 34 S.Ct. Cullison, N.W.2d at 536. ry.” See (“[TJhe 343-44, L.Ed. at 654-55 4th at with full applied requirement The warrant put ... the courts of the Amendment dicta, and, at least parolees force officials, in the States and Federal United id. at 537-39. as well. See probationers power authority, of their and un exercise on the focused

One dissent Cullison ... limitations and restraints [and] der by a was conducted fact that the search people, persons, their forever secure[d] officer, not a law enforcement parole effects, houses, un against all papers, (Larson, J., at 541 dissent- officer. See id. searches and seizures under reasonable as wheth- (framing question the initial ing) law.”); Agnello, 269 U.S. guise assisting officer can parole agent er the 32-33, 70 L.Ed. at 147-48 46 S.Ct. considering property stolen seize (same). cases, In these States parole system). dis- purposes of repeatedly emphasized Supreme Court by a parole that a search sent believed protecting the home importance historic exceptions qualified as one of officer prin core of Fourth Amendment as at the Id. at requirement. the warrant Indeed, federal many state and ciples. special has a status (concluding parolee a Pitt’s favorably have cited William courts law). The sec- and seizure under search in the House of speech famous Commons: emphasized “[a]n ond dissent further may cottage man in his bid poorest “The by peace offi- unlawful warrantless search to all the forces of the Crown. defiance they because legal cers does not become shake; frail; may its roof may It be by a officer.” Id. accompanied parole it; may through blow the storm wind (Stuart, J., short, dissenting). at 545 enter; enter; may but Cullison, may the rain even under the dissents officer, cannot enter —all his King England by police this case case, course, (recognizing parole more probationer involves a 8. This imprisonment parolees have few- akin to thus parolee. Even under the United and not a privacy). expectations of Cullison thus Fourth Amendment er States Court’s cases, however, distinguished on the basis that it probationer pro cannot be has more who, anything, parolee if had less- involved a and seizures than does tection from searches rights probation- California, and seizure than a er search parolee. See Samson v. 2193, 2198, 165 L.Ed.2d er. holes, noisy not cross the threshold of screens with electric fans for force dares relief, wattage lighting, summer and low tenement[.]” ruined the an protected by but such abode is still the States, See, v. United 357 U.S. e.g., Miller majesty awesome of the Iowa Constitution 1190, 1194-95, 2 301, 307, L.Ed.2d 78 S.Ct. by from unwarranted government searches (1958); Jafetz, Jonathan L. “A authorities. His Castle?”: Home is Man’s Reflections Home, Family, Privacy proposition the and Cullison stands for the on the Early protective Nineteenth and the arm of article Late section 8 During the Centuries, alike, Mary worthy 8 Wm. & J. “extends to all and unworthy, Twentieth (2002). 175, 175 Gansz, 2n. without distinction.” & L. Women (Fla.Dist.Ct.App.1974). So.2d As similar language. contains Our caselaw by Murphy many years ago, noted Justice MeClurg in emphasized v. Brenton: As we Rights intended to protect all must be officer, that a man is an The mere fact all, they extended to lest so fall into degree, or low him high gives whether of desuetude in the denying course of them right possessed by than is no more to the worst of men toas afford no aid citizen to in ordinary private upon break to the best of men in time of need. a home privacy subject of its States, occupants indignity to of a search for Goldman crime, 993, 999, legal the evidences of without a 62 S.Ct. 86 L.Ed. (1942) J., procured purpose. (Murphy, warrant for that No 1331-32 dissenting), over evidence, States, incriminating part by amount of what- ruled in Katz v. United source, supply 507, 512,19 will place ever its of U.S. L.Ed.2d (1967). At the closed such warrant. door of the home, hovel, palace be it even blood- E. Post-Cullison Caselaw. After law, wait till hounds must authorr Cullison, a number of other state courts it process, open. itative bids and federal courts question considered this 368, 371-72, 123 Iowa 98 N.W. 882 under the Federal Constitution or state (1904). society, probationers modern constitutions. agreed ap- Some with our parolees likely instance, are more proach live For Cullison. Unit- Rea, impoverished neighborhoods. See Appeals David ed States v. the Court of al., Harding J. et Home is Hard to Find: the Second came to Circuit the conclusion Institutions, Neighborhoods, probation required the Resi- that a officer is to ob- Trajectories Returning dential Prison- tain a warrant prior conducting a search ers, 647 Annals Am. Acad. Pol. & Soc. probationer’s Sci. of the home unless 214, 216-17, 222 sixty-six (finding search fell within one of the judicially rec- African percent ognized exceptions Americans who lived in require- to the warrant prior (2d Cir.1982). high-poverty prison areas moved ment. 678 F.2d back high-poverty prison, areas after The Rea court emphasized that there had generally “poor and that urban communi- been “no showing upholding the war- ties bear a disproportionate requirements share of the rant proba- for searches of burden” of reintegrating prison- seriously former tioners’ homes will impede the ers). language MeClurg accomplishment Under of the dual law enforce- Cullison, holding poor cottage goals proba- ment and rehabilitative (and or ruined parolee Similarly, tenement of a tion.” Id. at 387. in United Workman, implication a probationer) may Appeals be un- States v. heat, toilets, kempt, with lousy running for the Fourth came to the same Circuit minimize the that has tended to was ment law conclusion, approach that the noting emphasize ad the role of Supreme with the Court’s role of warrants and “consistent to the warrant exceptions that monition See id. at the Reasonableness Clause. and care few in number requirement ‘are (“This [ideological] shift has resulted 1205, 1207 F.2d fully delineated...585 hostility to the outright ‘per times in an at Ct, Cir.1978) (4th (quoting U.S. Dist. flexible rule in favor of the more stan- se’ L.Ed.2d at at at S.Ct. U.S. ”). newly dard of ‘reasonableness.’ & 767), Pa. Bd. Prob. abrogated by Fourth Amendment doctrine fashioned Scott, Parole v. a framework for the United provides (1998), recog 141 L.Ed.2d 344 as to avoid the war- States Court Armstrong, States nized United majority a requirement rant whenever Cir.1999). (4th Other F.3d it is “reason- the Court determines courts, Appeals for as the Court such (“The to do so. See id. Court’s able” Circuit, con came to a different the Ninth the flexible ‘rea- enthusiasm to embrace See, Fitzharris, 521 Latta v. e.g., clusion. noticeable in approach sonableness’ is most (9th Cir.1975). Yet, tran F.2d fifty-five numerical score: of the emphasized political sient winds blew Fourth Amendment decisions since a war on crime and discount the need for only has found twelve searches Court principle search and sei ed the founder’s Amendment .... that violated the Fourth overreaching govern fear of zure concern: telling, Even more has relied Court ment. the framework upon ‘per se’ rule as States Su- many years, For the United resolving only fifty-five nineteen of those number of cases has preme Court cases.”). result, As a Fourth Amendment strong reliance on War- expressed existing under requirement warrant rant in the Fourth Amendment. Clause precedent States United prefer- the “warrant What has been called against for citizens protection offers less closely associated with approach” ence than it arbitrary government intrusions and Justice Pot- Justice Felix Frankfurter at 1091 fifty years ago. (recog- did See id. generally See William W. ter Stewart. has under- nizing balancing approach Yost, Greenhalgh & Mark J. In Defense of requirement). warrant per mined the se Stewart’s the ‘Per Se” Rule: Justice Amend- Struggle to Preserve the Fourth reengineering of Fourth Amend- Clause, 31 Am.Crim. ment’s Warrant by highly divid- ment law is illustrated (1994). the warrant L.Rev. 1013 Under Griffin, a five- opinion ed Griffin. gener- a warrant was preference approach, majority of the States Su- member for a home ally required, particularly a warrantless concluded that preme Court search, cir- except narrowly under defined probationer’s proba- home search of cumstances, such as searches incident regu- pursuant tion officers to a Wisconsin arrest, exigent or where circumstances under the Fourth lation was “reasonable” a warrant. impossible make it to obtain 870-71, at Griffin, 483 U.S. Amendment. (“[A] per se id. at 1016-17 at 97 L.Ed.2d S.Ct. it falls within one of unreasonable unless 715-16, majority 721-22. The to the warrant re- exceptions the limited Griffin by application avoided the Warrant Clause however, decades, quirement.”). In recent justified needs” doctrine that “special of a Supreme Court has em- the United States the usual warrant and departures from reen- on a series of innovations and barked See id. probable requirements. cause Fourth Amend- gineerings established 873-74, protection probationer’s 97 L.Ed.2d at afforded a 107 S.Ct. at con- requirement. based its the warrant privacy 717. The Griffin clusions, part, in on the factual at least The in case was conducted in search a officer requiring probation home, premise petitioner’s place the that tradi- be “impractica- to obtain a warrant would tionally as the center regarded has been 3169-70, 876, id. at 107 S.Ct. at ble.” See life, a person’s private bastion at 719. 97 L.Ed.2d expectation which one a legitimate has privacy protected by the Fourth majority em- analysis, In its the Griffin Amendment. proba- the difference between a phasized general law enforcement tion officer and 883, 3173, Id. at 107 S.Ct. at 97 L.Ed.2d at 879-80, conducting the search. See id. at (Blackmun, J., 724 dissenting). 3171-72, 97 L.Ed.2d at 721-22. 107 S.Ct. at Stevens, joined by Justice Justice Mar- upon suspicion A search based reasonable shall, pointed: was even more ordinary cause was probable instead of speculation by police Mere a officer permissible, according ma- Griffin that a probationer “may have had” con- jority, overreaching by because the risk of possession traband in his is not a consti- a officer is less than that when probation tutionally for warrant- sufficient basis a by police is conducted a search officer less, private nonconsensual search of a ferret only whose mission is to out crime. home. I not simply do understand how 876-79, 3170-71, at See id. at 107 S.Ct. five Members of can reach a this Court L.Ed.2d at 719-20. contrary conclusion. majority thus moved the Griffin goalposts twice: Id. at at search and seizure first S.Ct. L.Ed.2d at that, instances, (Stevens, J., by announcing dissenting). in some a 728 longer required warrant was no for a home United States Court re- search, second, that a warrantless general visited the area of search and sei- supported by search could be less than rights probationers Knights. zure In probable cause. See id. at traditional 873- Knights, by the search was a conducted 3168-72, at 97 L.Ed.2d at S.Ct. police officer, by probation officers as 717-22. 534 U.S. at at S.Ct. Griffin. Seemingly recognizing potential in- 589, 151 question L.Ed.2d at 502-03. The stability of its “reasonableness” approach, was whether the line drawn in Griffin majority a firm drew line be- Griffin 117-18, would hold. at Id. S.Ct. at by probation tween a search a officer and a 590-91, 151 L.Ed.2d at 503-05. It did by search a general law enforcement offi- Tossing limiting language not. aside the 879-80, cer. See id. at 107 S.Ct. at 3171- decision, Knights in the 5-4 Griffin apparent, 97 L.Ed.2d at 721-22. As is probationer Court held that a signed who reasoning of the Griffin a probation agreement containing a search minority opinion consistent in condition which stated that he would be Cullison, which emphasized that search, subject to a which included his probation search was conducted offi- residence, any any at time and place, had cer. “significantly expectation ... diminished Court,

Writing for three members of the 119-20, privacy.” Id. at at S.Ct. Justice Blackmun wrote: 592, 151 L.Ed.2d at 505. Instead of a

I “special do not think ... special analysis law en- limited needs” that fo- justify forcement needs a modification of on the of a cused value warrantless search Samson, In the Su- L.Ed.2d at 255-56. persons the rehabilitation in promoting limit- again rejected prior Court its preme subject probation, law enforcement suspicion.” of “reasonable principle a search permitted ing circum- “totality upon based id. at 126 S.Ct. See id. at

stances.” (permitting suspicionless at 262 L.Ed.2d result, a war- As a at 505. 151 L.Ed.2d under the Fourth parolee of a by law enforce- conducted rantless search Amendment). to reach the de- order officers, probation as well as ment officers result, the Samson Court pragmatic sired suspi- reasonable police where had at least in- that the Fourth Amendment declared would be of a crime cion that evidence id. at rights. a continuum of volves uncovered, under the permissible was now 850, 2198, at at 165 L.Ed.2d 258. 126 S.Ct. Amendment. Fourth majority, the According to the Samson by afforded the Fourth limiting protections announced the While Griffin continuum, home searches a depend upon that warrantless principle Amendment proba- aby if conducted permissible expectations were have parolees where some ordinary superviso- pursuant however, tion officer expectations these privacy; 879, activities, at at 107 S.Ct. ry parole because is the greatly diminished 721, 3171, the search and 97 L.Ed.2d at while a imprisonment, proba- equivalent warrantless home for goalposts seizure greater pro- has a interest because tioner in again once were moved searches ordinarily in lieu of and not in bation is 119-20, 115, 122 S.Ct. Knights, 534 U.S. at See id. For a imprisonment. addition to 502-03, 589, 592, L.Ed.2d at at subject who was to a search condi- parolee based limiting principle of The old Griffin Samson, suspicion” “reasonable tion like eliminat- simply needs” was upon “special required. no See id. at longer was at Knights, 534 U.S. ed. See at 165 L.Ed.2d at 262 126 S.Ct. (find- at 151 L.Ed.2d at 506-07 S.Ct. a (finding police a officer could conduct “supported warrantless search ing a suspicionless parolee search of a without by a suspicion and authorized reasonable Amendment). violating the Fourth probation, was reasonable condition dissented, writing that meaning of the Fourth Amend- Justice Stevens within the ment”). Knights in is thus not ruling decision embraced “a re- majority’s the majori- searches, with the only inconsistent Cullison conducted gime suspicionless (no warrant, search ty multiple grounds grant a blanket of discretion pursuant cause), but it is also inconsis- probable no by any procedural safeguards, untethered minority, which em- tent with Cullison personnel who by law enforcement [and] fact that the search was con- phasized the in the welfare of special have no interest by probation ducted a officer. at parolee probationer.” Id. 165 L.Ed.2d at 262-63 126 S.Ct. considered Finally, Supreme Court (Stevens, J., dissenting). According to addressing a case California, Samson v. Stevens, regime new an- Justice parolee. of a the warrantless search “an unprece- was nounced 843, 846, 126 S.Ct. U.S. liberty.” Id. Clear- dented curtailment (2006). case, In this L.Ed.2d ly, by departing from even “reasonable walking while down a parolee stopped was requirement, suspicion” search, revealing to a subjected street and goal- and seizure moved Court bag methamphetamine. filled with plastic 846-47, a fourth time. posts Id. at son, Griffin, necessary are clear from but it was not propositions Two address First, Knights, probable require- and Samson. the warrant and cause Court, beginning ments when the search was invalid under a States new Fourth Amendment It developed analysis). enough has reasonableness dramatically work, day’s simply reject doctrine that substantial- for one ly undercuts the traditional warrant re- doctrine of Samson under article section cause, probable particulari- quirement, 8 of the Iowa Constitution. ty of search and seizure law. requirements however, today, In the case before us Second, the new doctrine announced there is question no that law enforcement Knights, and is Griffin, unques- Samson authorities had reasonable suspicion to tionably, flatly contrary to the approach of search Short’s home. The State’s sole twenty years this court Cullison earlier. appeal suspi- claim on is that reasonable Samson, Griffin, Knights, the Su- Thus, enough, cion is case closed. exactly preme engaged the kind appeal squarely presented: issue on is “socio-juristic” analysis and “dilution” Or, good accept Cullison law? do we in- majority expressly that the Cullison and struction Supreme from the United States Further,

firmly even rejected. the dissent engage Court and in an innovative recon- in emphasized Cullison the fact that a figuration of traditional search and seizure parole officer conducted the search. See law under the Iowa Constitution? (Larson, J., at 548-44 dissent- Analysis: F. Should Cullison ing). The contrast between Cullison and question Be Overruled? The before us Griffiro-Knights-Samson the line of cases now is whether we should overrule Culli- sharp and unmistakable. course, son. Of stare decisis is a factor to Notwithstanding Supreme Court’s time, consider. At the same we recognize Samson, approach Griffin, Knights, in and that stare always decisis is not determina holding we have not revisited the in Culli- Bruce, tive. See State v. Ochoa, rejected son. In we the eviscerat- (Iowa 2011). Otherwise, the law would be ing innovation of the in fly imprisoned like a in volcanic rock. Ochoa, Samson. See 792 N.W.2d at 291. I, begin We with a textual look at article so, In doing emphasized, we among other Constitution, section 8 of the Iowa which things, the historic basis of search and provides: law, home, sanctity seizure of the important role of warrants under arti- right people of the be secure I, cle section 8 of the Iowa Constitution. houses, persons, their papers ef- Ochoa, Id. at In rejected 287-91. fects, against unreasonable seizures and latest movement of the search and seizure violated; searches shall not be and no goalposts by the United States warrant shall issue probable but on Court. cause, supported by affirmation, oath or particularly describing place to be Ochoa, State, honesty searched, persons things and the integrity, declined to claim that the search be seized. supported by was reasonable suspicion. Const, result, I, See id. at is, § 262-64. As a it was not art. 8. The text course, necessary for the Ochoa court nearly to consider identical to the Fourth whether or Knights good law Amendment to the United States Constitu- Griffin tion, was, turn, or to reconsider Cullison. See id. at largely which modeled (noting simply court could affirm after the Culli- Massachusetts Constitution of Ochoa, language that follows the n. 7. show that 792 N.W.2d at 268 1780. See principle, illustrates the basic scholarship has demon- semicolon modern In-depth meaning namely, being that in order to avoid de- contemporaneous that the strated unlawful, in search and term “unreasonable” under clared “unreasonable” flexible, pragmatic law was not ordinarily seizure a warrant is article section assign to the that we often interpretation 792 N.W.2d at 268-69. required. See synonym today, but instead term Indeed, for a the notion that order Davies, Thomas Y. Correct- “unlawful.” See reasonable, pursu- it search to be must be Now- History: ing Search-And-Seizure warrant has histori- ant to a considerable Ar- Forgotten Warrantless Common-Law Otis, in support. cal James his brief Original and the Under- rest Standards Case, only specific asserted that Paxton’s Law,” standing “Due Process “ were reasonable and that ‘the warrants Da- L.J. [hereinafter Miss. ‘the among freedom of one’s house’ was term “unreasonable” (recognizing the vies] English branches of liber- most essential illegal a warrant was “so say meant to ” (citation omitted). ty.’ Cuddihy at 377-78 [it]”). could not authorize legislation even Similarly, shortly before Iowa obtained war- opposed general Sir Edward Coke statehood, court that in a state held order ” “ reason,’ again, a refer- ‘against rants as reasonable, it to be for a search to be had Ochoa, unlawful character. ence to their to a warrant. Banks pursuant executed (quoting Andrew E. 792 N.W.2d at 269 (21 Pick.) Farwell, 38 Mass. Taslitz, Reconstructing Fourth (1838). these historical lines of in- While & Sei- History A Search Amendment: necessarily provide not the rule of quiry do (2006)). Further, 1789-1868, zure, at 37 involving in concrete cases unfore- decision and dictionar- contemporary legal treatises circumstances, the historical record seen searches, categories that ies indicated insight meaning into the of con- does offer arrests, seizures were “unreasonable” and applied values that must be to stitutional Fourth by abolished and therefore modern circumstances. Cuddihy, The Amendment. See William J. There are also structural reasons Origins Origi- Fourth Amendment: (2009) As 602-1791, defending requirement. the warrant at 734-35 Meaning, nal Davies, Ochoa, interpretation an Cuddihy]; see also we indicated [hereinafter ap- that on the reasonableness clause (characterizing L.Rev. at 13 focuses Miss. and seizure proach of the United States the touchstone of search as machinery to “reasonableness” as a modern to up Court as law sets the intellectual bal- engages in relativistic make its engulf invention the warrant clause and rights and reflects rel- ancing ephemeral. of individual See 792 mandatory provision recent, ideologically judicial driven atively at 269. The search and seizure choices, original I, a rendition of under- not would be protections of article section 8 to en- urging state courts standing, by subject reasonability to determinations histo- in authentic search and seizure gage of this shifting majorities four-member ry). court, upon pragmatic consider- based of this court—indeed ations. Members will note that unlike

But textualists also ingenious any up court—can come with of the Fourth Amend- accepted versions just any how about explanations of ment, I, 8 utilizes a semico- article section Ry. Labor Skinner v. and is reasonable. the reasonableness clause lon between Cf. Execs.’Ass’n, 602, 637, 109 S.Ct. 489 U.S. out in pointed clause. As the warrant 1402, 1424, 103 Ochoa, to L.Ed.2d ordinarily is used a semicolon (1989) (Marshall, J., dissenting) (noting of the Iowa an important Constitution was development in our law. probable warrant and cause that absent standards, concept of reasonableness tempting, perhaps, say It is that in meaning, subject “virtually devoid case, where the record that law shows shifting judicial majori- whatever content good enforcement had reason to conduct ties, problems of the concerned about search, require- that the constitutional term”). supple to that day, give choose to I, ments have been But article satisfied. cautionary Anthony words of Amster- speak solely section 8 does not in terms of study in his classic on the Fourth dam into probable Irrevocably cause. welded reasonability Amendment that reliance I, requirements article section 8 are that a [Fjourth threatens convert “the magistrate warrant be issued neutral [Ajmendment into one immense Ror- scope limits the the search both greater urgency even to- schach blot” has respect places with to be searched and forty years ago. it See An- day than did par- items to be seized. The warrant Amsterdam, Perspectives on thony ticularity requirements of article section Amendment, Fourth 58 Minn. L.Rev. 8 are not siblings probable weak Amsterdam]. [hereinafter requirement. By requiring approval cause magistrate description of a neutral Indeed, rejection slippery of this kind of particularity, important constitutional reasoning very was at the heart of Culli- are promoted. By involving values a neu- son, socio-jurisdic which declared that re- magistrate, tral the warrant requirement quirements to evade probable ensures that cause is evaluated of the need for a search warrant command overzealous law enforcement offi- 536; unacceptable. were 173 N.W.2d at cers. The traditional view has been that “ Griffin, see also procedure justification ‘the of antecedent (Stevens, J., 97 L.Ed.2d at 728 ” ... is central to the Fourth Amendment.’ dissenting) (expressing surprise that five Katz, 359, 515, 389 U.S. at 88 at S.Ct. members of the Court would (footnote omitted). 19 L.Ed.2d at 586 As probable overrule the cause and warrant by noted Justice Jackson in Johnson: requirements in the context of a search of Amendment, point The the of Fourth officers). probationer by probation a aAs grasped by which often is not zealous result, allowing we have little interest officers, not that it is denies law enforce- the general- reasonableness clause to be a support ment the of the usual inferences trump ized card to override the warrant which reasonable [people] draw from ev- in the of clause context home searches and protection idence. Its in requir- consists reject suggesting the cases otherwise. ing by that those inferences be a drawn case, It is of course true that in law neutral magistrate and detached instead enforcement officers had suspi- reasonable of being judged by engaged the officer cion, at least as at hearing established the competitive in the often enterprise of on the suppress. motion to Short does not ferreting Any assumption out crime. suggest requirement otherwise. A of indi- that evidence sufficient to support a Ochoa, suspicion, vidualized as indicated magistrate’s disinterested determination important can be an in preventing factor a will justify issue search warrant the arbitrary searches and seizures law en- officers in a search making without a forcement, accept and our refusal to the warrant would reduce the Amendment approach I, Samson under article nullity section 8 to a leave the people’s homes

503 660, (1992); Novembrino, 667-68 State v. police the discretion of only secure 95, 820, (1987); N.J. 856-57 105 519 A.2d officers. Gutierrez, 431, v. 116 N.M. 863 State P.2d 369, 13-14, at 92 L.Ed. 333 U.S. at 68 S.Ct. 1052, (1993); Bigelow, 1068 People 66 (footnote omitted). at 440 417, 630, N.Y.2d N.Y.S.2d 488 N.E.2d addition, particularity require- In the Edmunds, 451, (1985); 457-58 A.2d search, the which scope ment the of limits Oakes, (Pa.1991); 171, 157 Vt. protection of important often is as (1991). A.2d Our 126-27 court of rights as authorization constitutional Cline, as refused well. 617 N.W.2d- at noted in the search itself. As Arkansas We 292-93. refused to allow evidence ob- Sanders: a purportedly tained as result of minor ... a ordinary In the case search of defects in and seizures. searches See id. must be both reason- private property The of protections article properly able to a issued pursuant simply important section 8 were too for a mere reasonable- warrant. enough” mentality. “close See id. at 290. search, light ness of a assessed of noted Frankfurter many As Justice circumstances, not a surrounding is years ago, history liberty of has “[t]he judicial warrant [re- substitute for largely history been the of observance of quirement] .... proeeclural safeguards.” McNabb v. Unit- 2586, 2590, 99 S.Ct. U.S. States, ed S.Ct. (1979), L.Ed.2d overruled on oth- (1943). 87 L.Ed. Acevedo, grounds by er U.S. at 114 L.Ed.2d at 633-34. fuzzy if we up Even were inclined to addition, obtaining a process requirement, warrant a home invasion by warrant prevents possibility posthoc law enforcement officers is the last place application a rationales. With written would begin process.. canard by magistrate, we can warrant issued person’s that a is their home castle has look to record in evaluat- the documented limitations, always subject been to some search, ing thereby of. a lawfulness but the remains a principle basic sound credibility steaming many issues asso- out talking one. We are not about routine who inquiries ciated with about said what security at airport encounter where the to whom when. purpose announced and understood importance safety passengers

Our all examination unre- recognition to the law requirements goals general of the warrant clause lated of enforce- ment, an investigative stop is in See 617 or on the street demonstrated Cline. N.W.2d quick a pat at 281-82. A of state courts that where down is conducted to officers, the question safety police have the under search ensure of or an considered acquisition of their state the exigent seizure clauses constitu- circumstance where tions, possible. the a not recognize good simply refused to new of warrant was Here, exclusionary police penetrating faith rule in officers are exception home, by place refuge, context the of final the search and seizure created focal point relationships, Court in of and what United States Unit- intimate is Leon, 897, 922-25, place of as a constitutionally, thought ed States v. 468 U.S. of 3420-22, 677, 3405, course, safety, security, repose. 104 S.Ct. 82 L.Ed.2d no Of (1984). See, occur, says State one such invasion can never e.g., 698-700 v. Marsa- an 58, la, 150, (1990); warrant, only supported 216 A.2d Conn. 579 65 but that a 981, Guzman, .cause, place probable describing State v. 122 Idaho 842 P.2d to be 504 Ochoa, things (recognizing to be obtained See 792 N.W.2d at 277

searched and required. is particularity, property a continued notion of and securi ty protections). in Fourth Amendment Sometimes, of constitution- eviscerations recognize that the probation While we upon that a al are based claims protections agreement provided Short with notice that expectation pri- has a lesser probationer vacy. reasoning generally Such is based right the State asserted to execute misreading of Justice Harlan’s con- upon searches, we warrantless do not think no at curring opinion in Katz. See 889 U.S. requirement tice eviscerates the warrant 360-62, 516-17, 19 at 88 S.Ct. at L.Ed.2d Samson, for home searches. 547 U.S. Cf. (Harlan, J., However, concurring). 2206, at at 165 L.Ed.2d at S.Ct. privacy expectation test Justice (Stevens, J., concurring) (rejecting re in Katz was de- Harlan’s concurrence liance on a or notice in parole condition contract, and not consti- signed expand, otherwise, agreement govern because Id. at protections. tutional 88 S.Ct. “ ... ‘suddenly ment could announce on L.Ed.2d at 587-88. Even Justice nationwide television that all homes hence concurring the author of the Harlan as subject forth would be en warrantless opinion objected applications. to its later ”); try1 Campbell, (noting 759 P.2d at 1044 White, See United States majority opinion that the in Katz does not 786-87, 28 L.Ed.2d phrase use the expectation “reasonable (1971) (Harlan, J., dissenting) privacy” Oregon and under the Constitu (stating significantly jeopardiz- intrusions emphasizing privacy tion to which one has ing Fourth Amendment liberties should warrant). right). rejected reasoning Cullison de require a And it simply cannot government, by simply be said that the an- signed strip pro or dilute constitutional nouncing may that warrantless searches probationers tections for home searches. occur, can the right eviscerate to be left 536. So should we. I, alone inherent in article section 8. Cf. requirements We further note that the 306 Or. Campbell, 759 P.2d I, imposed by article section 8 and en- (1988) (noting phrase that the us, namely, forced that a warrant is “expectation privacy” expresses a con- required for an unconsented search of the a starting point clusion rather than home, even parolee probationer, of a Oregon pro- search and seizure law privacy reasonably Indeed, tects not the one ex- terribly onerous. the balanc- pects privacy but which one has a ing interests between the individual and Tanner, right); State v. 304 Or. already law enforcement has occurred P.2d (citing 762 n. Amster- article probable section 8 cause 384). dam, Minn. L.Rev. at gov- If a requirement. As we have noted ernment announcement that a citizen is no past: longer from free unwarranted home probable practical, The rule of cause is a requirements search overrode the of arti- conception affording nontechnical I, cle protections section citizen would compromise best that has been found for Further, dramatically be undermined. ... accommodating opposing interests. expectation privacy analysis of was not de- Requiring unduly more would hamper signed supplant other constitutional val- law enforcement. To allow less would law, ues protected by search and seizure law-abiding at the be to leave citizens including right to be secure one’s trespass by mercy home from law enforcement. of the officer’s whim or caprice. plainly indicates that even a Cullison 258 Iowa Raymond, State (1966) (internal may give officer rise to quota- by parole a omitted). violation of article section a marks tion 539-40, this inter- N.W.2d at we reserve the additional constitutional That leaves day. esting question pre- for another We a warrant from obtaining requirements step by step law rather fer to consider the place describing the magistrate neutral a There by leaps than and bounds. is sub- sought things to be to be searched instance, for the authority, for stantial may else Whatever particularity. with obtained proposition that while evidence a past, obtaining in the true have been visits, by pro- home or searches through par- officer is not judicial from a warrant officers, may not be used in new bation a lead- by As was noted ticularly onerous. prosecutions, may criminal it be used twenty years ago, commentator almost ing establishing pro- a violation of purposes why warrants can- now no reason there is Indeed, this was the parole. bation day a twenty-four hours not be obtained point of the dissent. 173 N.W.2d Cullison Craig M. technologies. using modern (Larson, J., dissenting) (stating Models the Fourth Bradley, Two parole agent duty should have a to con- Amendment, L.Rev. 1492- 83 Mich. duct the search when he or she believes (1985). violating parole). is Because parolee it The factual assertion Griffin this case does not involve the activities of probation for a officer impracticable was probation conducting ordinary officer su- it wrong was then and is obtain a warrant pervision probationer, of a we need not P. wrong today. See Howard even more that arise from such a fac- consider issues Schneiderman, Perspectives Conflicting setting. tual and the Field on Proba- the Bench from It an undeniable fact that Searches—Griffin v. Wiscon- tioner Home cases, Reconsidered, people L.Rev. search and seizure who 1989 Wise. sin those survey bring generally results demon- the cases are “whose (noting ac unlawfully premises would searched contained requirement that a warrant strating they crime actu de- tual of the actual unduly probation not burden Wisconsin evidence Schauer, And, ally asser- committed.” Frederick partment). impracticable Amendment, 101 Mich. validity in of Heroes the First tion has even less the context (2003). But the law enforcement. As demon- L.Rev. by a search law case, of a home “is not to was not must be that a search by problem strated this law, by up. what it turns In legal it to obtain a warrant. be made impractical that was it good warrant. it is or bad when starts and does very practical It was to obtain a change from its success.” actually that the warrant not character problem failed, Re, 581, 595, States v. Di obtained was invalid and the State 210, 220-21 misunderstanding of 68 S.Ct. 92 L.Ed. through apparent an (1948) (footnote omitted). law, a new warrant. properly obtain valid, case, In amended warrant many Frankfurter As noted Justice acquired only have been modest could summary of years ago, is a fair histo- “[i]t additional effort law enforcement. safeguards liberty ry say addition, frequently forged valid- have been controver- we do not address the involving very people.” nice Unit- ity of visits and other measures uti- sies home Rabinowitz, 339 U.S. by officers as ed States probation parole lized 430, 436, 94 L.Ed. 660-61 ordinary Although their duties. S.Ct. part of J., (Frankfurter, dissenting), overruled in der the Iowa Constitution. We hold that California, I, article part by Chimel under section the warrant re- (1969). In 23 L.Ed.2d 685 quirement applicability has full to home Justice Frankfurter’s obser- reflecting on probationers parolees searches of both Carlton, a vation, past president Alfred result, lawby enforcement. As a because Association, Bar noted that the American evidence seized this case was obtained inevitably must bear the brunt of “Judges unlawfully, the motion to suppress should this, independence the cloak judicial is granted. again have been We note that P. that allows them to do it.” Alfred legality we do not address the of home Jr., Preserving Indepen- Judicial Carlton other types supervision by pro- visits or Exegesis, dence—An Fordham Urb. pursuant ordinary bation officers to their (2002). L.J. further Carlton functions, do we the question nor address inaccurate, against “[ijntemperate, warned probationer may validly whether a con- arising and emotional criticism” from such sent to warrantless home searches. public cases “undermines confidence impartiality judiciary

in the of the VI. Conclusion. independence.” hence its Id. Cullison, forty years ago More than pause We also to reflect on the observa- this court held that under the search and Kopfv. Skyrm: tion in I, seizure provision of article section 8 of But Casella was a criminal. He de- Constitution, the Iowa warrant valid punished; served to be arrested and his required for law enforcement’s search of a story sympathy, stirs little much less case, parolee’s In home. the State outrage, in the crowd. courts can- does not claim there awas valid warrant. not be impassive. always so We must decades, subsequent the United remember that unreasonable searches States Supreme away Court has moved helped and seizures drive forefa- our from its reliance on warrants toward and thers to revolution. One who would de- emphasis reasonability on standalone in its fend and seizure [search must share law] interpretation of the search and seizure sort, his foxhole with every scoundrels of provisions of the Fourth Amendment. We post but to abandon the of the because decline to adopt reasoning. this innovative poor company cheaply. is to sell freedom good We find Cullison remains law and (4th Cir.1993). 993 F.2d result, decline to disturb it. As a reasons, For the above law general enforcement author- think good Cullison remains law. We de ities of the home in this case was unlawful cline to overrule it.9 The United States under article 8 of section the Iowa Con- Griffin, Knights, stitution. We conclude the district court engaged Samson has in innovations that erred in denying suppress. motion to significantly protections reduce the Warrant Clause of the Fourth Amend DECISION OF COURT OF AP- VACATED; ment. join We decline to the retreat un- PEALS DISTRICT COURT note, according 9. We to the Bureau of www.bjs.gov/content/pub/pdf/ppusl2. Justice able at Statistics, 29,333 in 2012 there were Iowans pdf. contrary consequences of a result probation. on tics, See Bureau of Justice Statis- this case would be that the homes of those Justice, NCJ243826, Department U.S. persons subject could be warrantless States, Probation and Parole in the United searches law enforcement. (revised 22, 2014), app. Apr. tbl. 2 avail- saying our decisions goes AND It without CASE REVERSED JUDGMENT their always have not been without detrac- REMANDED. pointed Lyle, we out in State v. tors. As CADY, C.J., except concur justices All history court has today, also decided “[o]ur WATERMAN, and specially, who concurs up preserve one that stands and been ZAGER, JJ., MANSFIELD, who and rights regardless of the protect individual dissent, writing separately. each — -, -, consequences.” (Iowa 2014). Yet, histo- WL CADY, (concurring spe- Chief Justice vindicated, peo- and the ry repeatedly has cially). embraced, repeatedly have ple of Iowa capably resolves majority opinion civil, constitutional, expansions of bold court, join I it in the issue before rights human we have undertaken emphasize separately I write full. years the 175 of our existence throughout independently interpreting importance words, time as a court. other has our Constitution. decisions, shown that those not unlike our Iowans, deservingly proud are As we cases, unequivo- recent parolee upon incursions long history rejecting of this state. cally law Iowans, because liberty particularly in Today’s step decision is another just arrived to the result we have so often steady highest liberty march towards the Yet, curve. we well ahead of the national equality birthright that is the of all history that our of robust ignore cannot Iowans; it will not be the last. rights of human owes no protection authority within Amer part small to our Accordingly, I concur. in system independently ica’s federalist Similarly, our constitution. terpret WATERMAN, (dissenting). Justice that the virtue of federal forget must not I respectfully I dissent. would follow permitting ism lies not in the means of the unanimous decision United States in the experimentation but ends of state Knights, U.S. S.Ct. liberty, equality, dig and human expanded (2001), to affirm our court of L.Ed.2d Baldon, 829 N.W.2d nity. See State uphold and district court decisions 2013). appeals (Iowa A court ing the search of Short’s residence. distinctly hu categorically ignores these today majority’s opinion wrongly decid accomplish injustice. only man ends can forth in Justice ed for the reasons set Thus, recognized that “[w]hen we have dissent, join part. which I I Zager’s invoke the Iowa Constitution’s individuals my separately reemphasize write dis equality, of freedom and courts guarantees agreement departure with our court’s from guarantees.” those interpret are bound to Brien, precedent 876 well-settled Fourth Amendment Varnum v. (Iowa 2009); Williams, my F. to reiterate view that State v. Robert cf. plainly and State v. Ochoa are Equality in State Constitu Baldon Guarantees Law, explained by for the 63 Tex. L.Rev. 1197 erroneous reasons tional (1985) (“When dissent, with state constitu Justice Mansfield his Baldon faced Baldon, claims, joined. which I See State v. tional state courts should equality (Iowa 2013) (Mans 785, 835-47 recognize obligation their to take these N.W.2d field, J., But, dissenting).10 agree I seriously.”). provisions prove today the use of evidence to new opinion and in Baldón reviewed 10. The agreement expectations conclusion that the search and diminished Zager’s Justice upheld can be under privacy supervision. residence as a felon I of Short’s under And, join I in Justice decisions. disagree majority’s those with the conclusion case, dissent this separate Mansfield’s that Short expectations has same majority’s ten which addresses “estab privacy ordinary as Iowans. It is unfortu- con principles independent lished state Baldón, majority, nate the as it did in has stitutional law.” again failed to enforce an con- offender’s provision, depriving sent-to-search our majority neglects to mention that record, program impor- state’s corrections of an lengthy had a criminal in- Short encourage parolees proba- tant tool to felony He cluding multiple convictions. robbery. obey time in for On prison had served tioners the law. pled guilty March he to his fourth inAs several other recent decisions er- and, in theft-related offense lieu of incar- roneously majority, decided “[t]he ceration, generous received sentence of validity solidly of this consent search is probation on the condition that his resi- grounded on Fourth Amendment search dence could be searched without a warrant caselaw, good and seizure and there is no any time a law enforcement officer had I, reason to hold otherwise under article to believe grounds reasonable contraband section 8 of the Iowa Constitution.” State present. Consent-to-search clauses Pals, (Iowa 2011) commonly have in parole been used (Waterman, J., dissenting). Today’s ma- probation agreements to deter misconduct Pals, Baldón, Ochoa, jority, as in once wrongdoing. and facilitate detection of again uses the Iowa Constitution to evade later, Less than two months while still on well-settled Fourth precedent Amendment probation, Short committed the crime at without setting any principled forth basis home, by burglarizing issue this case construing nearly identically Iowa’s televisions, taking flat-screen jewelry, two worded search provision and seizure gift and a card to Minerva’s Restau- $100 greater require restrictions on the law en- rant. gift He used the card there and community forcement and elected branch- signed receipt. The waitress and man- majority es. The any fails articulate

ager later identified Short photo- from a interpreting standards for the same consti- graph. magistrate probable A found cause protections differently tutional under fed- to search his residence and issued a search eral and state law. The is willing warrant, which all parties acknowledge to reach a different result simply based was invalid due to an out-of-date address. particular its own conclusion that decisions deputies, based on inaccurate advice States Supreme Court are during phone call with the magistrate, address, “persuasive.” eye Persuasion is in the wrote in the new executed warrant, of the beholder. More restraint is war- amended and found the stolen property interpreting ranted when our state Short’s residence. The dis- consti- court, tution, trict following Knights, correctly up- by design which is so difficult for held the search based on probation people Short’s to amend.11 Baldón,

crimes. people 829 N.W.2d at 788-89. 11. The of Florida amended their state opinions open question provision Both leave wheth- constitution's search and seizure may conformity er the require State invoke an offender's viola- 1982 to with tion of parole interpreting the consent-to-search term in a decisions Fourth Const, ("This probation agreement pro- § in revocation Amendment. Fla. art. ceedings. right conformity be construed in shall Pull on the loose result, Knights. after majority takes law its To reach Cullison, majority’s and the thread of preser- to error approach an inconsistent unravels.13 analysis analysis on a false and rests its vation12 Cullison, parolee- premise home” sanctity to “the References —that case, ago four decades was decided majority’s departure justify the do in provision and seizure under the search preced Fourth Amendment from settled I, Baldon, 8 of Iowa Constitu- article section at 841 829 N.W.2d ent.14 Cf. (Iowa 1970). (“If (Mansfield, J., ‘sanctity 534-35 dissenting) tion. 173 N.W.2d status, nowhere with- an trumps That is mentioned of the home’ offender’s provision Ochoa, majority why in has this court corners of we held in the four as Rather, residency repeatedly upheld in that case. sex offender dissenting opinions restrictions?”). sanctity dis- The home has in Zager’s in Justice explained as further is not an exam fifty under the all states. This case today, was decided sent Cullison acting resort as good ple of state courts last longer and is no Fourth Amendment argued argu- that the State indeed at oral to the United States Con- tion the 4th Amendment stitution, wrongly by ment that Baldón was decided and interpreted the United States as Court.”). precedent Knights— in Supreme amendment was Fourth Amendment This — Yet, majority has no response to decisions of the Florida should be followed. finding suppressed po- evidence of crimes ad- on Court that hesitation broader restrictions Constitution, interpretations federal missible under lice searches under the argument § though Amendment. See id. cmt. in Fourth even Short made no such Hume, amend.; issue, So.2d State the district court. To reach (Fla.1987) (noting "the amendment majority must find that Short’s trial counsel intended, part, to overrule section 12 was disagree trial was ineffective. I that his coun- Sarmiento[, 397 v.] our decision in failing [State ineffective for to foresee our sel was (Fla. 1981)]”). So.2d 643 depart Knights, a court would from unani- mous decision of the United States majority wrongly State concludes the 12.The directly point widely followed preserve error on the consent issue failed to by supreme any other courts without state the State used the term "waiver” because require crimi- academic criticism. We do not arguing provision in the consent-to-search clairvoyant. See nal defense counsel to be probation agreement be en- Short’s should State, (Iowa 745 N.W.2d Millam majority faults the State for not forced. 2008). developing the record on consent in the dis- probation agreement part of trict court. The is Today’s majority de- 13. claims Cullison was develop- the record. What further factual cided under the Iowa search and seizure ment is needed to decide the issue here? men- because article section 8 is clause And, developing why for not fault the State in that case. in the defendant’s brief tioned better record on consent in district court appended opinion. That brief was not argue did not at that time for when Short expect lawyers Do we now to discover hidden rights the Iowa Constitution? broader under genera- rulings opinions published a in our Zager’s explains, the As Justice dissent further ago on a citation in an archived tion based play in provision is in this brief, consent-to-search finding long-lost archeologists akin to rulings supports appeal and affirmance of jungle? temple But, upholding take the the search. let us that, saving grace majority at its word. The today’s majority prohibit Would a warrant- by the if the consent issue was waived State serving less search of the home of an offender it, case, majority then the does not decide under house arrest with an ankle a sentence and the remains free in future cases State incarcer- monitor as an alternative to bracelet argue probation consent- for enforcement county jail? If penitentiary or ation in a state agreements. to-search so, discourage will use of home confine- incarceration, encourage greater at majority party no "asks us to ment and asserts liberty taxpayer expense? to men- loss of revisit” Baldón. The fails Amendment, developing meaning same as the Fourth doc laboratories areas, such as same-sex trine in unsettled as the framers of our state constitution squarely Pals, the issue is de marriage, before at intended. See Rather, Supreme Court. our (Waterman, J., And, cided dissenting). today departs from a unanimous de court long-standing should return to our tradi- Court, Knights, cision of that tion of following high- decisions of the 122, 122 151 L.Ed.2d at S.Ct. here, when, est court in the land as no widely that is followed our sister states departure by any is warranted difference their The ma under state constitutions.15 text, structure, in history or of the any decision of other jority cites no state provision. Iowa supreme declining Knights court to follow warning I dissent to fire another shot constitution. Nor under its state does ship majority across the bow of the any marshal academic criticism of wrong steers in the without direction Knights. system. navigation majority’s departure from settled Fourth inevitably Amendment caselaw I, I. We Article Should Construe Sec- confusion, unpredictability, to leads and tion 8 of the Iowa Constitution law, instability multiple in the with sets of Meaning Have the Same as the applying rules to the same conduct. Fourth Amendment. view, my we return should to our tradition- I, practice interpreting al of article The Fourth Amendment to the section I, 8 of the Iowa Constitution have the States Constitution16 and article section See, Raines, 1, e.g., 15. promoting State v. 383 Md. protecting 857 rehabilitation and soci- 19, 21, (2004) Maurstad, 688, ety”); A.2d (applying Knights 27-34 State v. 647 N.W.2d 691, (N.D.2002) concluding Maryland (following Knights and 697 framework DNA and commenting reviewing the constitu- ”[w]hen Collection Act is constitutional under both the searches, tionality probationary of Constitutions); have Maryland United States and interpreted the Anderson, North Dakota Constitution to State v. 733 N.W.2d 140 provide protections probationers the same (Minn.2007) ("The Supreme Court's decision provided by as the United States Constitu- Knights appear in sharp does not to be a or tion”); Kottman, State v. departure previous radical from its decisions (S.D.2005) (rejecting argument under or a retrenchment on its Fourth Amendment ); following Knights state constitution and jurisprudence respect probation with A.C.C., (Utah State ex ret P.3d Moreover, searches. we are not convinced 2002) (”[L]ike the United States precedent inadequately protects that federal Court, we too have stated that whether an liberties.”); rights our citizens’ basic and any individual convicted of a crime has rea- Moody, State v. 334 Mont. 148 P.3d expectation privacy requires sonable of a bal- (2006) (citing Knights favorably and ancing government’s operat- of the interest in Constitution, concluding, under Montana ing privacy its institutions and the individual's visits, “home as a routine and reasonable interest.”). supervising element person a convicted release, serving supervised a term of are not right people 16. The of the to be in secure subject and searches are thus not to the rea houses, effects, persons,- papers, their and standard”); Baca, sonable cause seizures, against unreasonable searches and (N.M.Ct.App. N.M. 90 P.3d violated, shall not be and no Warrants shall 2004) (stating “our review Griffin issue, cause, upon probable supported but Knights noting reveals no flaws” and "[i]n affirmation, particularly Oath or describ- Mexico, well, New as whether a search is searched, ing place persons to be and the by balancing unreasonable is determined things to be seized. degree probationer’s priva of intrusion into a Const, cy against government the interest of the U.S. amend. IV.

5H are worded the drafters of constitution [state] the Iowa Constitution17 identically provide delegates same to the constitutional virtually protection against unreasonable searches the phrase convention intended “search Compare U.S. Const. and seizures. and seizure” in the state document to Const, I, IV, § art. Amend. mean, general, phrase what the same court, courts, supreme like most state Our means in the federal constitution. traditionally prece- federal followed has Caballes, Ill. People Ill.2d construing language the same dent (2006). 26, 45 This Dec. 851 N.E.2d constitution. See Robert F. the state equally true in Iowa. Williams, The Law American State Con- timing adoption of the Iowa stitutions, (noting a “clear nearly and the use of identi- Constitution18 follow, cases rather majority” “decide wording cal confirm framers intended diverge from, federal constitutional than duplicate article section 8 to the same doctrine”). the United States Decisions of against protection unreason- issues that are Court resolve Supreme in the able searches and seizures found lawyers argued by the best briefed and Pals, Fourth Amendment. 805 N.W.2d at have country, after those issues first the (Waterman, J., 786 “ar- dissenting) (noting in the federal thoroughly been vetted I, ticle 8 was the Amend- Supreme section Fourth appeals. of Our nation’s courts all ment in Iowa to the binding apply federal ‘reenacted’ to Court decisions are Nelson, (quoting courts the Fourth state” State v. 231 Iowa applying and state (Mitch- and, 177, 185, 685, (1941) erroneous, plainly unless 300 N.W. 689 Amendment J., interpret ell, nearly dissenting))); be to see v. People should followed also Pickens, 298, 797, language in the state constitution. Mich. 521 identical 446 N.W.2d (1994) Illinois reaffirmed its (commenting 806 the conven- “[i]f interpret to its adherence federal cases tion or ratifiers had intended to alter the constitution, stating: state’s meaning provision, presume we can of this they by express have done so would lockstep approach This limited (internal quotation words” marks omit- sovereignty an of state surrender ted)). have supreme function. Other state courts judicial abandonment the It instead, is, premise the that reached the same conclusion.19 based on 1684, 643, (1961). right A people to be 81 6 L.Ed.2d 1081 17. The the secure S.Ct. houses, effects, persons, papers rights patterned their state constitutional bill against Rights and searches unreasonable seizures Bill therefore after Federal violated; be and no warrant shall shall not necessary provide the limitations same cause, supported probable by but on issue against governmental indi state intrusion on affirmation, describing particularly oath or vidual Amendment civil liberties. Fourth searched, persons place to be and the 1949, applied was not to the states until when things to be seized. Court held Amendment was incorporated in the Due Process Clause of the Const, I, § art. 8. Iowa Amendment, enacted after Fourteenth Colorado, 25, 27- Civil War. 338 U.S. Wolf v. the time the Constitution was en- 18. At Iowa 28, 1359, 1361, 1782, 69 93 1785- S.Ct. L.Ed. 1857, the Amendment limited acted in Fourth (1949), grounds by 86 on other overruled government. only the federal See Weeks v. 643, 1684, Mapp, 6 L.Ed.2d 367 U.S. States, 341, 232 U.S. S.Ct. (1914) (applying 58 L.Ed. exclusionary Fourth Amendment and rule 19.See, Caballes, officials, e.g., municipal police Ill.Dec. but not to federal Ohio, officers), (highlighting Mapp the Illinois by v. N.E.2d at 32 overruled See, Breuer, meaning. e.g., cites no historical evi- State v. Today’s majority (Iowa 1998) (“‘[T]he 41, 44 founders intended the N.W.2d lan that Iowa’s dence im- provision guage substantially and seizure of those clauses is Iowa search consistently restrictions on law enforce- identical and have inter pose greater therefore, I, is, surprise preted scope purpose no of article It ment. and seizure caselaw has section of the Iowa Constitution to track our state’s interpretations with Fourth Amendment federal of the Fourth long tracked ” Showalter, consistently (quoting we have con- Amendment.’ State v. caselaw because (Iowa 1988))).20 I, 166, 168 8 to have the same strued article section J., (Iowa 2012) (Waterman, provision concurring spe- search and seizure Constitution’s ("I cially) clearly upon very modeled would be [F]ourth "was hesitant to throw precedent to the United States Constitu aside decades of and create anoth- [A]mendment Johnson, tion”); discrepancy 293 Kan. 259 P.3d er between Fourth State Amendment ("Section identically 15 of the Kansas law and how the worded article Rights provides lockstep Bill of section 8 of the Iowa Constitution Constitution is inter- Amendment.”); protection preted.”); McCoy, Fourth State Johnson, (Iowa 2005) ("Because 253 Kan. 856 P.2d we find no basis to (1993) ("Both distinguish protections the Fourth Amendment and afforded Rights] prohibit § 15 Kansas Bill of unrea [of Constitution from those afforded searches and seizures. We have sonable held federal constitution under the facts of this case, wording scope that the the two sec our discussion of the defendant’s practical pur applies equally tions are identical for all claimed seizure violation un- Nash, 196, poses.”); People provisions.”); v. 418 Mich. 341 der both constitutional State v. 439, (1983) (“There Reinders, 78, (Iowa 2004) N.W.2d 445 is no indica 690 N.W.2d 81-82 ("Because people tion that ... the of this state wished to the federal and state search-and- identical, place nearly restrictions on law enforcement activi seizure clauses are the con- required greater than those persua- ties the federal struction of the federal constitution is fact, contrary constitution. the interpretation provi- intent is sive in our of the state sion.”); expressed.”); Wiegand, 708, State v. 645 N.W.2d Loyd, State v. 530 N.W.2d 711 125, (Minn.2002) (recognizing (Iowa 1995) ("[W]e 132 the Fourth interpret scope the and "textually provi Amendment is identical to a purpose of the state constitutional clause to sion of the Minnesota Constitution” and interpretations be coextensive with federal of Supreme opin Amendment.”); therefore United States Court Strong, the Fourth State v. interpreting 834, ions the Fourth Amendment are (Iowa 1992) 493 N.W.2d 835-36 Havlat, "inherently persuasive”); State v. 222 (" language *[T]he of those clauses is substan- 554, 436, (1986) ("No Neb. 385 N.W.2d 440 tially consistently identical and we have inter- independent where in our research of the I, preted scope purpose of article state constitutional conventions do we find 8, section of the Iowa Constitution to track explic evidence that the framers intended the interpretations with federal of the Fourth ” I, 7, language § it encompass of article Showalter, (quoting Amendment.’ 427 Felix, says.”); more than what it State v. 339 168)); State, N.W.2d at Kain v. 378 N.W.2d (2012) (not Wis.2d 811 N.W.2d 787 (Iowa 1985) (“[0]ur interpretation 902 ing "particularly the court is reluctant” to I, quite consistently of article section 8 has interpret provi the state search and seizure prevailing interpretations tracked with federal broadly sion more than the Fourth Amend deciding of the fourteenth amendment in sim- "given nearly language ment identical issues.”); Groff, ilar State v. 323 N.W.2d provisions”). both (Iowa 1982) ("We have often said that where state and federal constitutional clauses Baldon, guarantee 20. See 829 they also N.W.2d at 837 contain a similar are deemed J., (Mansfield, dissenting) (collecting long scope, import, pur- "a to be identical cases, Roth, Supreme line many pose.”); of Iowa Court of State v. 305 N.W.2d 507 recent, (Iowa 1981) ("Defendant giv[e] challenges them rather [that] deference to interpretations federal of the Fourth Amend search under the Iowa Constitution as well as ment”); Lowe, Constitution, 812 N.W.2d 582 the United States but we see no room recently diverged parolee’s of a motel violated has our court Only the Iowa provision search seizure of first This court precedent. from this Constitution, though it permitted even modern-day diverged from overtly Fourth Amendment based under and seizure decisions the United search Supreme precedent. States Court Cline, in State v. Supreme States Court proclaimed: Id. at 291. The court Ochoa (Iowa 2000), abro- N.W.2d any inconsistency In order to resolve Turner, State grounds by other gated on cases, that, prior' in our we now hold (Iowa 2001). n. Supreme while United States Court stated, con- strive to be Cline court “[W]e respectful consider- cases entitled law in with federal constitutional sistent ation, we engage independent will of the Iowa Constitu- interpretation our analysis of the content of our state tion, ‘jealously guard right we our but provisions. and seizure A duty appropriate to differ cases.’” opinion Fourth Amendment of the Unit- Olsen, (quoting at 285 State N.W.2d Court, Eighth ed States 1980)). (Iowa 216, 220 held Cline Appeals, any Court of other Circuit or good-faith exception exclusion- court binding upon federal is no more ary recognized by United States rule interpretation article our section not exist under the Supreme Court did the Iowa a case Constitution than is Cline, Id. at Constitution. decided another state court supreme however, to a rejected exception a federal provision under search and seizure vio- judge-made remedy that state’s degree constitution. The lations; impose re- greater did not Cline which United States follow police power strictions on to conduct precedent, any precedent, other warrantless searches. See Davis v. Unit- depends solely upon ability per- its States, -, -, ed suade us with the the deci- reasoning of 2419, 2426, 180 L.Ed.2d sion. (noting per- exclusion of evidence “is not a added). (emphasis Id. at 267 The Ochoa but right,” sonal constitutional rather is chest-thumping judicial court’s assertion of (internal prudential remedy court-created power marked from departure a dramatic omitted)).21 quotation marks long-standing our court’s adherence to set- court’s next retreat Fourth Our from the precedent tled Fourth Amendment on Ochoa, precedent Amendment State v. was validity of This mindset searches. new (Iowa 2010). Pals,22 Baldón, The N.W.2d 287-91 metastasized into and to- day’s court held that a warrantless search decision.23 Ochoa noted, impose deputies reason to a different rule under the 21. As the obtained a warrant Davis, constitution.”); state State telephoned a to search Short's residence and 1981) ("The (Iowa Supreme N.W.2d magistrate upon discovering new ad- Short’s arbiter Court of Iowa the final of the mean- magistrate mistakenly advised dress. Constitution, ing of the Iowa but when the write officer could the new address and state federal constitutions contain similar on the warrant. The State does not ask us they usually provisions, are deemed to be narrow, good-faith ex- revisit Cline find a import, scope, purpose.”); identical exclusionary ception to the rule under Olsen, (Iowa N.W.2d State facts of this case. 1980) (noting Supreme United State interpretation of the Amend- Court’s Fourth Pals, majority held consent persuasive construing ment is state’s this involuntary under article 8 of section analogous provision). state constitutional the Iowa the officer ignored long Constitution because simply The Ochoa court line right say to tell motorist he of cases. failed had Ochoa, just tion. than I consider a United Our Constitution is more Contrary to reject a device to or evade federal deci- decision on the Supreme Court States ...” sions. significantly to be of Fourth Amendment than a weight deci- greater precedential Kottman, State v. supreme court. by another state sion (S.D.2005) Schwartz, (quoting obvious, Because, Why? to restate the (S.D.2004) (Konenkamp, Supreme holdings States Court’s J., concurring judgment)). and federal courts binding on all state majority, citing professors, two law Amendment, our the Fourth applying long-stand- our court’s perjoratively labels pro- constitution’s search and seizure state ing practice following Fourth Amend- meaning has the same as the federal vision precedent “aggressive ment to be an maxi- provision. approach “precommitment malist” and a device examina- preventing independent interpret It our court’s role to is indeed tion No of the facts and law.” court until Constitution, I part company the Iowa but now has used those labels to describe the majority’s willingness to with the stated approach supreme followed most state police impose greater restrictions any justices I courts. doubt of our legislature our under the Iowa Constitu- Ochoa, court who including retired before merely provision tion’s search and seizure Moore, jurists Clay such as C. Edwin Le- Fourth by deeming Supreme Court’s Grand, Harvey Uhlenhopp, would have precedent unpersuasive. Amendment agreed accurately those labels describe disagreement A bare with the United their approach to search and seizure law. interpretation States Court’s device,” “precommitment Stare decisis is a “imparts Federal no Constitution contrast, By is it not?24 ex- impose sound doctrinal basis to a con- pressly following any specific disavows trary pretext sepa- view under the determining standards or criteria for when rately interpreting our State depart Constitu- from settled Fourth Amendment request no to his to look in his vehicle. 805 der the Iowa Constitution to strike down a legislative tax differential that the N.W.2d at 783. No such disclosure was re- unanimous Court, highly applying the same quired precedent def- under Fourth Amendment case, very upheld in (Water- erential test the same as prior or cases. See id. man, Equal constitutional under the Federal J., Pro- dissenting). taught We were Racing tection Clause. See Ass'n Cent. grade policeman school that the is our friend. (Iowa Fitzgerald, Iowa v. 675 N.W.2d But, police lawyer the officer is not the for a 2004); J., (Carter, dissenting); id. at 16-17 id. pulled suspicion motorist over of a crime. for J., dissenting). (Cady, at 17-28 produced today's juve 23. The same mindset invariably evidentiary 24. We scrutinize the sentencing nile decisions in which our court precedent record to determine whether is fac- fringe Eighth stands alone at the Amend tually distinguishable. may Federal courts be , —- jurisprudence. Lyle ment See State v. divided, may certain or issues be unsettled. N.W.2d -, -, (Iowa WL 3537026 And, may precedent we decline to follow 2014) J., (Waterman, dissenting); id. at- plainly found to be erroneous. Precedent - J., (Zager, dissenting); Taylor, may response intervening be reexamined ——, (Iowa 2014) (noting Justices changes in the law other or circumstances. Waterman, Mansfield, JJ., Zager, and dissent case-by-case adjudication Our is never unth- And, opinion). without the same mindset ear inking predetermined way in a that fore- sharply lier analysis. allowed this court in a divided closes such Neither should our de- opinion misapply cision-making precedent. un- from rational-basis test be untethered J., (Glaze, dissenting) label best describes What precedent. violated Arkansas (concluding majority today? majority’s approach and sei by giving state search precedent from departures recent majority’s The meaning than provision zure different following decisions court’s numerous our Amendment). Fourth un- precedent federal constitutional settled instability further majority injects stability of predictability dermine that our through law its mantra into our precedent Revisiting settled law. our apply right “reserve[s] court find of this court justices four whenever fashion.” I am in a [different] standard serious leads to “unpersuasive” cases prior ap- that means. Does this not sure what many Too troubling repercussions. guessing law a predicting make proach play. back into put rules are long-settled game? served the doc- goals This subverts of our court’s decisions legitimacy A recent admonition of stare decisis. trine reality perception on the part rests repeating. is worth Court law, the rule of not applying that we are prece- its does not overturn Court [T]his the law preferences what personal our decisis, have we lightly. Stare dents As Justice Frankfurter admon should be. stated, course because preferred “is the ished, “justified writing are not [our] evenhanded, predictable, promotes it policy notions of into the Constitu private legal development and consistent tion, deeply may cher no matter how [we] de- judicial fosters reliance on principles, may [we] ish them or how mischievous cisions, to the actual and and contributes Bd. disregard.” their W. Va. State deem judicial pro- integrity of the perceived Barnette, Educ. v. “not an inexorable Although cess.” 1178, 1189, 87 L.Ed. S.Ct. command,” a foundation stare decisis is (1943) (Frankfurter, J., dissenting). We law, necessary to of the rule of stone ground interpreting our state are on solid develop “in a legal that rules ensure consistently with constitution For intelligible fashion.” principled construing decisions States reason, always has held that this Court in the Federal Con parallel provision the doctrine “any departure” from shaky ground when We are on stitution. justification.” special “demands simply because we path we take a different —Cmty., Indian Michigan Bay Mills “unpersua interpretations the federal find U.S. -, -, sive.” (2014) (citations omit L.Ed.2d of constitutional con- principles “If these Walker, ted); also State v. see ignored were to be critics struction (Iowa 2011) (“Stare decisis is a judicial it unreasonably would declare stabili legal valuable doctrine which lends say their arrogance for courts (Internal quotation ty to the law....” lim- construe constitutions was power to Bantz, omitted.)); v. 686 marks Kiesau might only by the restraints courts ited 2004) (Iowa J., 164, (Cady, 180 themselves. Courts are impose upon (“It nearly goes saying without dissenting) they neither are legislatures, not of of stare decisis is one that the doctrine of adopters framers and constitutional on which this court principles the bedrock Powell said What Justice constitutions. on rele- important It an restraint context is not without is built. is in another sta ever mindful of authority provides needed vance: ‘We should be judicial law.”); if a that would arise for the the contradictions bility respect in and cf. general over- Brown, 460, democracy permit were to 156 S.W.3d 356 Ark. State 516 govern- uniformity the elected branches of between

sight of state and federal by nonrepresentative, ment and in search and seizure law. Our sister states insulated, judicial recognized importance have large measure of unifor- ” mity branch.’ in state and federal interpretations of language.25 the same constitutional Di- 128, Caballes, Ill.Dec. 303 851 N.E.2d 36 from verging precedent settled federal re- Tisler, 226, (quoting People 103 Ill.2d 82 in sults two sets of rules and confusion (1984) 613, 147, Ill.Dec. 469 N.E.2d 161 among the bench and and law enforce- bar (Ward, J., concurring)). Returning to our ment over which rules to follow. It also approach legitimacy traditional will restore results, leads to inconsistent whereby evi- adjudication in our constitutional dence from same arrest or crime could area. court, be admissible in federal but not by from majority, diverging The settled Baldón, state court. See 829 N.W.2d at precedent, federal contributes to Tower (“[W]e (Mansfield, J., dissenting) 842 now cacophony varying of Babel-like of state have two different sets of search and sei- interpretations nearly identically court of Iowa.”). zure rules provisions. worded search and seizure part problem, Our court is now The Iowa bench and bar and the law As one commentator community solution. ob- enforcement whipsawed by served, today “state law is a our court’s end runs around well-settled vast confusing, conflicting, wasteland of Iowa and Federal Fourth Amendment essentially unintelligible pronounce- precedent. Federal Fourth Amendment Gardner, ments.” James A. The comparatively Failed law has been stable. See — Constitutionalism, Davis, at-, Discourse State 2433, 90 U.S. 131 S.Ct. at of (1992) 761, (“Decisions Mich. L.Rev. 180 L.Ed.2d at 301 overruling [hereinafter Adherence Gardner]. well-settled this Court’s Fourth Amendment prece- rare.”).26 Fourth Amendment precedent promotes dents are The Iowa bench and See, Hunt, e.g., 25. consequence State v. 91 N.J. opposite] ap untoward [the of (1982) (noting A.2d proach impose “enforcement is possibly of two different and courts, conflicting criminal laws in federal and state constitutional standards on law ”) (Citation omitted.) involving episodes, sometimes enforcement identical officers.' Poole, (quoting encourages application gov- of State v. 871 P.2d uniform rules (Utah 1994) (Stewart, J., seizure”); Gomez, erning concurring)); search and State v. see Friedman, (1997) ("[W]e 122 N.M. 932 P.2d also Lawrence Constitutional Dialogue recognize responsibility Value and the New Judicial Feder state courts to L.Q. alism, (2000) preserve Hastings uniformity development national Const. application (following precedent justified, rights guaran- federal fundamental "is by regard teed least in to the enforcement our state and federal of the crim constitutions.” law, (Internal omitted.)); quotation uniformity, inal an marks interest in which State v. Flores, urges development 280 Or. of identical P.2d state and (considering government federal rules to "the need for a control conduct uniform standard issues”). regard procedural in the area law under discussion” as a analysis); factor its state constitutional Anderson, (Utah disagree 910 P.2d majority's I with the contention 1996) ("[A]n independent constitution- that federal [state courts have "diluted” Fourth analysis necessarily analy- is not protections. al] Amendment relies different Indeed, sis. dissenting we have opinions endeavored toward uni- and commentators for view, formity application in the search and which belied unanimous requirements holding police seizure of the generally state and federal decision this term constitutions, particularly respective since the searching must obtain a warrant before a provisions practically are phone identical.... 'One smart seized incident to a lawful ar- the “values” rationale (recognizing fed- rely on settled be able to should bar misuse”); high potential a for Gard- “has in con- directly point precedent eral (“[T]he ner, notion 90 Mich. L.Rev. at 818 of the Iowa provisions struing parallel local variations in character significant of criminal defense Will Constitution. identity just implausible is too to take di- compelled argue to attorneys now feel consti- seriously as the basis for distinct prece- Amendment vergence from Fourth discourse.”). tutional a claim of any to avoid dent on issue counsel, malprac- of ineffective assistance battle lines for this debate tice, neglect for or disciplinary charges of the South drawn in the divided decision position if the taken incompetence in Schwartz. See Dakota Court —even long-settled caselaw—mere- contrary is 437-45; at at generally 689 N.W.2d id. might majority of our court ly because (Sabers, J., dissenting). In See unpersuasive? precedent find the Schwartz, were convicted of defendants J., Baldón, (Appel, at 816 829 N.W.2d possession based on ev- methamphetamine finding (citing cases concurring specially) search of idence obtained a warrantless guilty ineffective or defense counsel at 433. The their curbside trash. Id. state failing argue for “malpractice” the South Dakota Con- argued defendants claims). lawyers Must Iowa prohibited the warrantless search stitution and review of the fifty-state survey ado Id. at 432. As and seizure of their trash. every case to brief Iowa, provision academic literature the search and seizure reject a decision of why we should the South Dakota Constitution was Or, why both- identically court in the land? to the Fourth highest nearly worded n. 1. disregard of our court can See id. at 435 majority er if a Amendment.

any precedent? States squarely question addressed the We Articulate Standards

II. Should protec Amendment of Fourth applicability Departing Feder- for from Settled curbside trash tions to California Construing al Precedent When Greenwood, 486 108 S.Ct. U.S. the Iowa Provisions in Same (1988). held 100 L.Ed.2d Greenwood Constitution. garbage their for persons place who course, not have a reasonable We, public collection do interpretive have the its contents. privacy de- over expectation our state constitution to power under Greenwood, 40-41, at precedent. Just because U.S. part from federal 1629, 100 at 36-37. The Schwartz I L.Ed.2d does not mean we should. depart we can Dakota argued the South Con majority’s assertion that defendants disagree with the provide be construed “criteria” stitution should court should not establish our at 435. protection. 689 N.W.2d diverge from fed- broader determining when to view, plurality noted my our de- The Schwartz interpretations. eral applied courts follow Greenwood be based on articulated state partures should test as Greenwood essentially than the same something mean more standards that under the South reach the same result “values” or a bald conclu- a salute to Iowa The Schwartz Dakota Id. “unpersua- Constitution. precedent the federal sion observed, jurisdictions “Those Schwartz, 444 plurality sive.” - -, (2014). California, Riley U.S. rest. See 189 L.Ed.2d -. 134 S.Ct. 2473. 2495. company deciding whether a part

who have decided state constitution- al receive a generally provision divergent decision have re should the Greenwood (1) upon unique language interpretation, in their state we should examine lied (2) issue; protection to trash the text of the provision constitution to extend at territorial, legal, for collection.” Id. Two dissent and constitutional his- intended (3) tory justices unpersuasive surrounding provision; found ing Greenwood greater protection for under structural differences in the State and and advocated (4) Constitutions; South Dakota at Federal the mat- Constitution. Id. (Sabers, J., unique ters of state tradition or concern dissenting). that bear the meaning provi- of the concurring opinions Two for the called sion. type analysis lacking today’s' majority Id. at 440.27 Konenkamp, Justice after Baldón, Pals, opinion and Ochoa. standards,” discussing “divergence these Schwartz, (Zinter, joined opinion following J., concurring); (Konenkamp, id. 437-45 Id. at 441414. Greenwood. J., concurring judgment). Justice Zin- ter admonished counsel in future cases “to Justice Konenkamp’s thorough analysis present interpretive methodology provides some a useful roadmap determining that leads to principled independent constitutional in- whether an state constitution- terpretation they when assert that al adjudication essen- lead to a' different should tially language identical in our than precedent. Constitu- result federal “Constitu- tion something means different than the analysis always begins tional with the noted, United States Constitution.” Id. at 437 text.” Id. at 441. His concurrence (Zinter, J., concurring). A concurring when the South Dakota Constitution was opinion by elaborated, 1889, Konenkamp Justice adopted “the Federal Bill of stating: broadly “Whether we can more Rights binding had no effect on state courts,” interpret similarly our suggesting worded state consti- that “the adoption of tutional provisions many should be decided on a provisions State Bill of [in the] divergence neutral set of Rights may standards.” Id. ... have reflected an intention J., at 438 (Konenkamp, concurring in re- primarily duplicate corresponding feder- sult). This concurrence warned that al provisions.” Id. He that a observed “[wjidely divergent interpretations of simi- wording difference in provide would lar provisions create unpredictability and argument interpre- best for a difference in confusion in the law.” Id. at 439. His tation. “substantively Id. Faced with a concurrence went on to propose: provision, identical” he concluded that Health, (2007) Kerrigan 27. See (listing also v. Comm'r principled Pub. four criteria for “a (2008) 289 Conn. 957 A.2d consideration of state constitutional doc- trine”); Jewett, (detailing six factors "to be considered in State v. 146 Vt. 500 A.2d construing (1985) (reviewing the contours of ap- our state constitu- 236-38 various may tion so that prin- proaches independent reach reasoned and state constitutional Hunt, cipled Gunwall, meaning’’); adjudication); results as to its 106 Wash.2d J., (Handler, (us- (1986) concurring) A.2d at 965-67 (articulating 720 P.2d ing criteria); divergence Johansen, analyze divergence seven criteria to state six Robin B. Flores, Note, provisions); 570 P.2d at The New Federalism: Toward a Princi- Constitution, (utilizing pled Interpretation four criteria from Johansen’s the State adding New Federalism note and a fifth: "the (identifying Stan. L.Rev. need for a uniform supreme standard in the area of “four factors state court should discussion”); law making under principled interpreta- Commonwealth v. consider in Russo, constitution"). 594 Pa. 934 A.2d tion of the state missing standards are in terpart. Such language itself indicates “[n]othing in the analysis today in majority’s and prohi- the state intended the framers Ochoa, Pals, and Baldón. Those stan- and unreasonable searches against bition departure Knights warrant no from the federal dards broader than to be seizures in progeny Fourth Amendment and its the Fourth Amendment.” in prohibition case. appropriate an 442. He ended with Id. at indepen-

cautionary regarding admonition Ill: Conclusion. adjudication: constitutional dent state ensure that our con- summary, in other deci- generations, For countless in a jurisprudence develops sions, stitutional the search our court has construed way, we must and authentic methodical in the Iowa Bill of provision and seizure interpretive princi- by a set of guided be Rights purpose, scope, to be of the same analysis neutral Authoritative and ples. It and effect as the Fourth Amendment. cannot Dakota’s Constitution of South long-standing is this tradition adherence reactionary episodic from advance from which precedent to settled federal from other state borrowing of results since diverged, sporadically, our court has Litigants must demonstrate courts. was decided December We Ochoa text, of a history, purpose job supreme as a state court do our best provision South Dakota constitutional by applying pre-Ocfeoa jurispru- our own interpretation from supports a different dence, which article section 8 of holds provision. If corresponding federal has the same mean- the Iowa Constitution any place principle where the there is Fourth Amendment. should ing as the We us, it is ought restraint to deter judicial relying on well-settled federal return to divergence. in the area of constitutional on search and seizure issues. precedent Slobogin As Professors Whitebread reasons, and the reasons set For these warn, activism “wide-open state [court] Mansfield forth the dissents Justices decisionmak- judicial runs counter to Zager, I would affirm the decision of clarity, efficiency, and ing goals of appeals judgment the court of reasoning.... activ- principled [Such court the search of upholding district it policy promotes is bad because ism] Short’s residence. uncertainty, questionable duplication of review, jurispru- and result-oriented MANSFIELD, J., joins this dissent. offer valid cau- dence.” These words MANSFIELD, (dissenting). Justice tions, but, case, they should right vigorous anal- discourage not us from I in the dissents of Justice Water- join ’ ysis South Dakota’s Constitution. Zager, sepa- and Justice but write man rately respond majority’s to the ten added) (citation omit- (emphasis Id. at 445 “[ejstablished [pjrinciples [independent ted). applies foregoing admonition [sjtate IAs will [constitutional [l]aw.” equal force here. show, established attempt to these depart likewise should not Our court majority’s I will principles. respond precedent federal with- from well-settled in order. points ten Konenkamp’s good out reason. Justice list of ten pro- majority begins 1. The its divergence “neutral set of standards” by asserting that its constitu- principles who would advo- guidance vides to those announced in 2010 has approach tional construing cate an Iowa “thoroughly explored” differently than its federal coun- been provision Here, con special protectors rights.” in 2011 and of individual all opinion released in 2013. See State v. majority really saying currence released is is that Amer- (Iowa 2013) Baldon, 829 N.W.2d ica had states before it had a national J., concurring specially); State v. (Appel, government. Of true. course is But (Iowa 2011); Pals, 805 N.W.2d 767 State relevance point what is the of that when it 2010). (Iowa Ochoa, That interpreting comes to the Iowa Constitu- debate, majority sug should end the tion of 1857? notwithstanding the clear disconnect gests, Our state did not come before the Unit- approach court’s 2010-2014 between this fifty ed States. became a state over We approach seizure and the it to search and years after the Federal Bill Rights took for decades before 2010. adopted ratified. Our framers article respectfully disagree. I Actual decisions section not because it resembled some- binding have stare can decisis in thing some other state’s colonial era effect, a philosophical approach but is constitution, already but because it was binding? by Is a statement the Iowa Su- provision. ifSo federal in preme gives one case that it no Court matter, timing and sources we should be

weight to United States Court guided by interpretations of the Fourth interpretations the same constitutional Amendment. language binding for all future cases? I Principle three is that there was a

think not. Could four Justices of the Su- strong emphasis rights on individual in the preme bind Court this court the future To support Constitution. this con- intent,” realism,” “original “legal to follow tention, majority cites us to the state- analysis or “economic of the law”? I doubt by George ments during made Ells it. debates over the Iowa Constitution. We Furthermore, the State of Iowa has di words, should look at Elis’s actual not the rectly put approach at issue the to be majority’s paraphrasing. taken in this state constitutional search and seizure case. While the State is not offering After an amendment that was Ochoa, Pals, seeking to overturn the adopted by the convention to include a today, it Baldón decisions has asked this counterpart Due Process Clause in give court to deference to United States Constitution, the Iowa Ells said: precedent. particular, Court I am one of that class of men who the State asks this court to follow United believe that that in the clause Constitu- Knights, States v. States, tion of the United has been vio- 587, 593, 151 (2001), S.Ct. L.Ed.2d Congress lated of this nation in unanimously which that Court upheld a such a manner that justi- we would be probation search similar to the one here. time, by legal fied at this either enact- brief, The State concludes its “Short has ment or incorporating provisions into produce justification failed to sufficient constitution, protecting our ourselves upstream against swim operation. regard from its I the Fugi- well-accepted Knights." decision in unconstitutional, tive Slave Law as be- Thus, we need to decide whether give cause it does not to man right give Knights deference to or not. I be- liberty by defend his life and “due lieve we should. process opinion, of law.” In this I ex- majority’s

2. The principle pect my second to be at variance with friend Lee, Johnston,] that state original constitutions were “the from who [Mr. and those Now, so that it would have the him. the committee who Constitution act with protections against degree the amendment to this sec- same have offered section, as the States rampant so from a desire that ond did pro- He was not provided. of this Constitution Rights Bill of in the Constitution State, process re- clause so that Iowa’s strong, posing be as in this due should go on future solo missions to the United courts could spect, as the Constitution of seen, Chairman, of constitutional interpretations have Mr. find new States. We meanings.28 again provisions violated and with established that Constitution land, party in the again by the dominant example v. is another of McClure Owen rough-shod over the necks which rides majority’s reading the overenthusiastic of large In common with a of freemen. nineteenth-century sources. See 26 Iowa State, I of this majority people of (1868). majority The cites as McClure our constitution contain desire to see early recognition an that Iowa can “con- for freedom that words every guarantee provisions strue state constitutional free process If the words “due express. can precedent.” from federal But McClure law,” recognized by in time be of shall nothing proposition had to do with the they mean what judicial our tribunals to discussing today. are The constitutional mean, be really person do “that no shall provisions being interpreted in McClure liberty property, or deprived life, of provisions were Iowa constitutional legal proceeding upon a based without counterpart no in the United States Con- law, principles the common and of stitution. See id. at 244. the constitution the United States”— of Thus, McClure, the court noted the man, liberty life or every that when his Supreme United States Court had refused right have the to be imperilled, shall interpre- to follow our court’s recent most jury countrymen. tried a of his a' Then, sir, question authority tation on of the of Fugitive Slave infamous municipal corporations the Iowa under nullity, Law will become a and the (citing Gelpcke Id. at 253 Constitution. people trample American will its odious 175, 206, 1 City Dubuque, 68 U.S. Wall. enactments the dust. of (1863)). 17 L.Ed. This in- 1 The Debates the Constitutional Con- of Iowa-specific provisions volved with no (W. vention the State Iowa 101-02 of of parallel in the United States Constitution. 1857) added), (emphasis Blair rep., Lord generally Gelpcke, 68 U.S. http:/Avww.statelibraryofiowa. available at (setting provisions at 525 forth L.Ed. org/serviees/collections/law-library/iaconst/ Constitution). the Iowa iaconstdebates. lines, entirety, Along the same Iowans should Reading Elis’s statement its majority’s justly proud rather than the shorthand ver- be of several landmark deci- court, sion, clearly urging colleagues including he his sions of our was Clark Directors, (1868), process clause in the Iowa Board 24 Iowa 266 include due "during majority The 21 How. 16 L.Ed. court reached this conclusion with- Clark searched, persons things and the and citing discussing any prece- federal out be seized. dent or the United States Constitution. Const, I, § Iowa art. 8. id. at 269-77. Nor is our generally

See I do not think one can use this inconse- Coger example in an court’s decision quential punctuation justify difference to a divergence Supreme from United States I, interpretation different of article section a precedent interpreting parallel Court 8. provision Coger of the Iowa Constitution. a presciently held that “woman of color” Notably, in merely Ochoa the court not-

was entitled to equal accommodations un- ed this difference. See 792 N.W.2d at 268- Equal der the Protection Clause of the 69. it Now elevates this difference into a finding United States Constitution without statement of the 1857 framers’ intent. any rights broader under the Iowa Consti- majority’s 4. The next is principle that 153,155-57. tution. 37 Iowa at These the incorporation of federal constitutional rightly today, they decisions are hailed but guarantees against the led to “a states has justification should not be cited as for what tendency Supreme United States doing this court now in is search and sei- Court to dilute the substance of the zure law. Amendment, rights.” The Fourth in the view, extravagant, my Also somewhat view of the majority, was watered down majority’s is the claim that our framers’ once it became incorporated against use rather semicolon than a comma in states under the Fourteenth Amendment. I, article section indicates framers “the majority decries United States [of the Iowa believed that Constitution] Supreme having replaced clear Court re- there a relationship between the rea- quirements “vague notions of reason- sonableness clause and the warrant ableness.” clause.” Let’s review the federal and the First, provisions. People can decide for themselves wheth- the Fourth Amendment: er this recent court’s article section 8 greater clarity decisions have led to and right people be secure view, predictability. my In a rule that houses, persons, papers, their and ef- fects, would sustain searches based on reason- against unreasonable searches and seizures, violated, suspicion probationers able who con- shall not be and no issue, upon probable Warrants shall but sented to such searches as condition of cause, affirmation, supported by probation straightforward easy Oath or is five, unanimously by principle majori- was sustained 5. number apply. It state law to Supreme ty “lockstepping Court contends States or mini- precedents federal not a humble 122 S.Ct. at Knights. See 534 U.S. but approach, aggressive malist is an Knights re- L.Ed.2d at If approach maximalist to the law.” This is a watering down of constitutional sulted in a man attack no member straw because ev- protections, escaped that observation questioned has authority this court its Court, Supreme includ- ery member of independently interpret Iowa’s Constitu- Stevens, Souter, Ginsburg, ing Justices The issue is one of tion. deference—do we Breyer. authority exercise our substantial “in the really Knights if involved some de- And degree and seizure area with from historic Fourth Amendment viation modesty self-imposed and restraint”? See expect one would some other principles, Baldón, (Mansfield, J., 829 N.W.2d at 843 somewhere, court, state to have voiced dis- dissenting). agreement. But the cites no ex- I do not understand the basis for the ample of a state court that has declined to viewpoint being “humble” its Knights under own constitution. follow reject precedents when we from the Unit- just door, contrary, To the next in State v. ed States and state su- Court Anderson, the Minnesota preme country courts around an unanimously declined invitation to de- conclude, ourselves, a that warrant part Knights from under Minnesota necessary to always search a home absent (Minn. Constitution. (or consent). maybe exigent circumstances 2007). logic majority’s The of the opinion would decision,

In this unanimous the Minneso- require also a searching warrant before ta Supreme Court observed: person the home of a who is under house arrest. Does that make sense? Court’s decision implication majority’s posi- appear sharp does not a

Knights to be that one is being tion is “humble” when or departure previous radical from its one finds new rights constitutional decisions or a retrenchment on its when “maximalist” one does not. This is jurisprudence Fourth Amendment question. fact, certainly open In if we respect probation More- searches. transpired, tragically, look at what be- over, we convinced that federal (Iowa 1839), Ralph, tween In re Morris 1 precedent inadequately our citi- protects (19 v. Sanford, and Dred Scott rights zens’ basic liberties. Accord- How.) 393, (1857), 15 L.Ed. have a ingly, we decline invitation Anderson’s statutory interpretation of an act of Con- the search of un- deem his residence (In Ralph) gress being re overridden when under the reasonable Minnesota Consti- the act was declared unconstitutional on tution. it ground previously violated some Id. undiscovered interpretation (Dred Scott). Notably, Minnesota’s counterpart Amendment is simi- quite Fourth worded Both cases involved a slave who entered larly I, 8, including territory. to Iowa’s article Ralph, section free In re the slave presence aof semicolon between “vio- had entered Iowa with the consent of his Const, master, Compare pay lated” and “and.” Minn. albeit on he condition that a Const, I, § § art. vnth Iowa to his the price art. certain amount master “as 1 Morris at 6. The Su- courts should be constitutional innovators of his freedom.” Iowa, Territory preme if you disregard what those decisions actu- Compromise of the Missouri interpreting ally say. Iowa was a free held that because Since accuses dissen- free once he en- territory, Ralph became of utilizing ters “what Professor Adrian all understanding Iowa with “the tered ‘precommitment Vermeule refers to as a going that the slave was to become

parties device,’” reading it is worth the relevant of the free state permanent a resident or section of Professor article. Vermeule’s territory.” Id. Here it is: Scott, In Dred States Su- held that Dred Scott could preme Court picture, free-speech On this doctrine is freedom, despite not obtain his the fact judicial partly precommitment device brought by that he had been his master partly prophylactic rule. It is a territory voluntarily free into and had precommitment judges device insofar as (19 spent considerable time there. 60 U.S. devising free-speech doctrine at time 1 How.) 15 L.Ed. at 721. In so worry that cognition at time their own ruling, the Court struck down as unconsti- decision-making processes or will af- be Compromise tutional the same Missouri fected some overpowering influence. Ralph which In re had relied: (In context, free-speech the influ- Congress deprives act of which [A]n ence might exigency be the social liberty citizen of the United States of his provoked political suppression property, merely because he came speech, or the offensiveness of the brought himself or his property into a itself.) speech judges So the restrict particular Territory the United their 2 by announcing, choices at time States, and who had committed no of- prevent time a rule that will their laws, against hardly fence the could be surrendering future selves from the to dignified with the name of due process passions prophy- of the moment. It is a of law. lactic device judges choosing insofar as free-speech worry, rules at time 1 not considerations, Upon these it is the about their own future cognition, but opinion of the court that the act of Con- about the cognition judges other de- gress which prohibited a citizen from cases, ciding future judges either of sub- holding owning and property of this kind ordinate courts or future members of in territory the of the United States very the court that devised the rule at mentioned, north of the line therein is time 1. judges legal Here the formulate by Constitution, not warranted the and doctrine in order to restrict other void; is therefore and that neither Dred judges’ future choices. himself, any Scott nor family, of his by were made free being carried into Vermeule, Adrian The Judicial Power in territory; they this even if had been (and Federal) Courts, the State Sup. owner, carried there the with the (2000) (footnotes Ct. Rev. becoming permanent intention of a resi- omitted). I do not know what this ver- dent. biage means but I am confident it will not 450-52,15 Id. at L.Ed. at 719-20. me in help deciding whether the search of view, In my you can Mr. in only draw the les- Short’s residence this case was son from In re Ralph and Dred Scott that lawful. Next, irony majority’s that The second runs some- the contends

6. (1) like Su- giving thing this: United States irony” defer- there is “double preme jurisprudence confusing is in- Court’s to States ence United uniform, (2) and not the Iowa Su- Amendment. terpretations of Fourth be preme straighten Court will able irony. begin majority’s first I will with uniformity. things provide out and I think when irony first is that at time this overestimates wisdom of this renewal federalism “societies advocate Scalia, court. Justice whose observation state, it ironic returning is power quot- jurisprudence” about is judicial for state “inconsistent exception that an made approval by majority, advances ed power.” view that we back 1791. go should any clamoring by not I am aware Acevedo, See California give power society judges more to strike 114 L.Ed.2d down laws. federalism movement (1991) (Scalia, J., concurring judg- (1) re- generally goals: focuses two ment). If required a warrant for a straining govern- of the federal power then, it be required kind search should ment; greater giving states a abili- the same now. kind One can destiny. ty Expansive, to decide their own quibble approach, with that but it is a I, idiosyncratic interpretation of article the majority’s coherent doctrine. What is As I goal. pointed 8 serves neither section guiding other principle general than hos- Baldón, not federal officials are out tility to warrantless searches? if by article section bound The majority goes say then on to evidence from Short’s house this case any uniformity lack of between feder- Short on a prosecute had been used al and search and seizure law “does he have no charge, federal would recourse. create a on profes- not substantial burden Baldón, (Mansfield, 829 N.W.2d at 842 question law I sional enforcement.” So, J., may say one dissenting). whatever statement. majority’s search and about seizure not jurisprudence, against it is a bulwark court agree I do all decisions power. federal perfect equal. Some court deci- needless sions create burdens because majority giving Nor is Iowans a incomplete reasoning, have leave they opportunity to choose their own greater unanswered, questions contain unneeded Rather, destiny. overriding it is a deter- dicta, to go or threaten direction by mination Iowa’s elected branches going No actually judge without there. searches, upon suspicion per- reasonable of ever should assume that her applying who been to proba- sons have sentenced task, be an even for easy his decision will tion, way are an to rehabilitate appropriate professionals. protect community. and the defendant (2011) (“Pro- See, gets my original point. § But this to e.g., Iowa Code 907.6 back subject the conditions es- we choose to follow Federal Fourth bationers are When following judicial depart- tablished district Amendment we are precedent, subject already put ment of services standards that have been into correctional court, any practice country. of around the Those deci- approval and additional only by have vetted reasonable conditions which the court or sions been department unanticipated So the conse- may impose pro- their authors. district decisions, large of to a de- quences rehabilitation of the defendant or those mote already community.”). emerged have been ad- protection gree, of the best, subsequent says simply This is we will exercise “our decisions. dressed precedent.29 of independent judgment proper pa- the whole idea com- rameters state constitutional path, on our own When we embark mands.” consequences will not know what do majority’s rul- example, be. For will respectfully suggest I we owe the citi- grants lead to fewer ing in this case a bit than zens the state more this. We rate of incarcera- higher and a probation independent judgment, owe them our best majority not think the knows. tion? I do sure, that independent judgment to be but majority ap- also asserts that its tempered respect should be with for those attorneys not burden because proach will with grappled who came before us and develop state consti- required the work same issues. is “not overwhelm- arguments tutional law majority’s principle 9. The ninth is Here, majority. ing.” agree I with the dealing parallel when we are state argu- the briefs do not contain Even when provisions and federal constitutional Constitution, the Iowa this ments under parties separate do not advocate a repeatedly willing court has been to make standard, gen constitutional this court will arguments litigants for the and decide erally apply the standard set forth in fed fact, if them. it almost seems as caselaw, eral constitutional but reserve the lawyer in court would be wiser not to this See, right stringently. e.g., to do so more argument. an Iowa develop Kooima, State v. litigant actually up argu-

A who writes an (Iowa 2018); Tyler, fall generally ment has to stand or on that (Iowa 2013). I am puzzled argument, litigant merely but a who refers why majority alleged mentions this in passing gets the Iowa Constitution principle following here because it is not it theory the benefit of whatever this court today. develop. decides to say, approach, Needless to this amor- majority’s eighth principle 8. The be, phous though may it involves at develop that it is better not to a set of least degree prece- “criteria” for when this court will deviate some of deference to federal precedent. majority from federal dent. majority following

29. The claims to be court's decision in [Cullison ] ... held that a Cullison, precedent parolee court’s own of State v. did not surrender his Fourth Amend- (Iowa 1970). 173 N.W.2d 533 At the rights by risk parol- ment virtue his status as repeating my colleagues Ochoa, what Justice Water- ee.” 792 N.W.2d at 264. And then Zager said, man and Justice have in their said "Rejecting stripping the court present dissents in case and what I said in diluting approaches, the [Cullison] dissent, my Baldón Cullison was a Fourth parolee rights held that a is afforded the same Amendment case. It was criticized at the any person as other under the Fourth Amend- being misapplication time for of the Fourth ment.” Id. at 286. Toward the end of its Amendment, Bland, Note, see J. Richard Case opinion the court recharacterized Cullison as (1970), 19 Drake L.Rev. and is no having probable "held that the warrant and longer good law view because its of the I, requirements cause of article section 8 are superseded by Fourth Amendment has been fully applicable parolees' to searches of subsequent Supreme United States Court de- homes.” Id. at 287. cisions. Zager, As noted Justice those who would Ochoa, I, acknowledged view Cullison as a on In this court twice decision based article that Cullison was a Fourth Amendment deci- section 8 face the considerable obstacle that I, claiming sion before otherwise at the end of the decision never mentioned article section 8. said, opinion. the First the court "[T]his Ochoa, Pals, and Baldon for ap- reasons majority’s The Ochoctr-Pals-Baldon Baldon, however, It no gives previously is different. I have discussed. proach, (Mansfield, J., According to weight precedent. to N.W.2d at dissent federal reach deci- majority today, “we our remedy, the ing) was about not {“[Cline] of federal constitution- independently sions that the right.”). Cline observed Fourth analysis.” I, al Amendment and article section “are identical, in generally scope, deemed to be

Thus, Ochoa, said, court “The the import, purpose” applied same follow United States degree to which we the analysis provisions ques both under Supreme precedent, any other Court a violation had tion whether occurred. solely upon ability its precedent, depends (citation and 617 N.W.2d at 281-82 inter persuade reasoning us with omitted). quotation nal marks at 267. We so decision.” 792 N.W.2d said urged had not though even the defendant really just tenth principle I, of article separate interpretation section principle making first an encore. The ma- (Mans- Baldón, 8. See 829 N.W.2d (since jority believes it is settled law De- field, J., dissenting) (noting that Ochoa had 2010) States cember that United not that the state constitutional asserted search and decisions en- Court seizure interpreted differently provision should be titled to no than a more deference law Amendment). Pals, In than the Fourth question review article. I continue to States again said that United file this proposition and therefore dissent. entitled to defer- precedent was no ence, though even the defendant had ZAGER, JJ., join WATERMAN urged a different standard. this dissent. (stating the issue present- N.W.2d at 771 ZAGER, (dissenting). Justice ed); (Waterman, J., see id. at 784-85 also argued Pals never dissenting) (noting I I believe respectfully dissent. provided pro- Iowa Constitution broader search in this case was constitutional un- Amendment). tection than the Fourth der both State and Federal Constitu- majority’s tions. I with the fram- disagree Pals, Ochoa, if read summary, you ing majority’s reliance issue and Baldón, opinion, today’s federal consti- (Iowa Cullison, on State 173 N.W.2d precedent gets tutional no deference re- 1970), as controlling precedent this is- gardless argues. what the defendant Though sue. has some minimal Cullison times, But at when other even the case I presented, relevance the issue would gen- involves article section this court according our interpret constitution to de- erally the federal framework in the follows velopments jurispru- in search and seizure See, argument. e.g., absence separate according since dence that time and Kooima, 206; Tyler, particular of this case. circumstances Un- Hence, view, my N.W.2d at 291-92. analysis, der that I would hold the search majority’s principle ninth undermines the in this case was constitutional. concept support. overall it is intended curiously sidesteps final principle, majority In its tenth and case, mantle true issue which was unan- again prece claims the in this so, it In says simply doing dent for It is swered and Baldón. itself. Ochoa Cline, majority the departs v. 277 the from incremental- reaffirming State N.W.2d (Iowa 2000), Ochoa, Pals, approach recently and I have taken in Baldon. ist the disagree be search and cases under Iowa categorized that Cline should seizure Kern, having grounds v. reasonable con- See State believe Constitution. (Iowa 2018) added.) (declining present.” (Emphasis traband is N.W.2d the The district court in its order referred to special-needs whether doc consider language this as a “waiver.” There is no under article section 8 trine was viable dispute probation agreement that the con- support of facts “to an in the absence language. tained consent-to-search way in a application of the doctrine rationale”); and purpose reveals its State addition, In the district court found (Iowa Baldon, v. apartment search of Lorenzen’s was 2013) (“The question narrow before us is cause, upon probable based even after ac can government whether the conduct the knowledging the search warrant itself was solely required based on search consent challenged defective. Short never given by parolees' be as a condition of probable-cause finding for the search. Ochoa, prison.”); release from State 792 Nevertheless, majority characterizes (Iowa 2010) (emphasizing N.W.2d the officers’ individualized suspicion as being questions the broader left unan believe, only suspicion.” “reasonable I swered). approach, Under this we have light of the undisputed district court’s and seizure according decided search cases cause, finding probable coupled with according not presented, facts to a language probation consent of the selective reformulation those facts. See caselaw, agreement and our we should ad Kern, 170; Baldon, see N.W.2d also dress whether under the Federal and (“We at 801 have no occasion Constitutions, general law enforce in this grounds case to consider other may constitutionally ment authorities con justify available to the State to such a probationer duct warrantless search of a search.”). steps The taken in these cases based on the individual’s waiver of his small, may have been but at they least rights probable search and seizure on unique have been based circum majority caus.30 The elects to avoid stances of the cases before the court. altogether, critically consent issue dimin ishing persuasiveness its and effect. he placed probation,

When was on Short probation agreement executed a under majority’s analysis flaws of the do which he consented to a search of his framing end with the of the issue. residence, Cullison, person, property, place of relying vehi- majority asserts cle, “[tjhere personal anytime, effects at question can be no that Cullison warrant, “by any without involves a pro- holding under the Iowa Consti- bation law true, officer or enforcement officer tution.” this is While Cullison does sent,” 30. The is correct that the State did the issue of Short's waiver of his search not use the word “consent” in its brief. The rights highly prop- seizure is relevant and did, however, significant State devote discus- erly part considered as of the issue before this sion to "waiver” Short’s of his search and clearly It court. erroneous not to discuss rights part proba- seizure executed as of his deciding consent and waiver this case. agreement. tion same, The district court did the Also, opinion, as is discussed later in this county attorney as did the and Short's entirety majority opinion almost the of the attorney. trial theAs Seventh Circuit Court analyzes parole agreement Baldón from case, Appeals noted in a has similar "Con- viewpoint of consent and the voluntari- rights rights stitutional waived, like other can be agreement. of the ness consent-to-search provided knowing that the waiver is argued argument intelligent, State also oral that it as it was here.” United States Barnett, (7th Cir.2005). relying provision proba- 415 F.3d on the consent Thus, despite agreement support absence of the word "con- tion itself in of the search.

529 8, Nowhere I, provision’s it it state the rule. article section mention not I, basis. A even mention article sec- on this does Cullison clearly was not decided court’s his- through this carrying majority opinion tion 8 in either the or tradition present, to the continuing down tory, and dissents. court, interpreting provi- when

is for this conspicuous in Cullison is the anal- Most Constitution, quote the of the Iowa sion ogous provision, federal constitutional Ochoa, see, 792 N.W.2d e.g., provision, Amendment. That constitutional Fourth I, 8); State v. article section (quoting 268 entirety. in its provision quoted once (Iowa 277, Cline, 281 n. 2 617 N.W.2d Cullison, (quoting 173 at 538 N.W.2d 2000) (same), abrogated grounds on other Ct., 523, 528, v. Mun. 87 Camara Turner, 601, n. 630 N.W.2d 606 by State v. 1727, 1730, 930, 935 S.Ct. 18 L.Ed.2d (Iowa 2001); Enters., Inc. v. Iowa 2 Lee (1967)). Additional references to the Comm’n, 730, 162 N.W.2d 736 State Tax Fourth Amendment are also scattered 1968) (Iowa III, (quoting article section See, that, “in throughout. e.g., (noting id. 29); Hoegh, Hutchinson Co. v. Sperry & in- processes the field of administrative 410, 9, 18-19, 416 Iowa 65 N.W.2d 246 safety volving people, health and (1954) I, 6), article section or to (quoting rights fully are now Fourth Amendment see, e.g., provision, state the rule of the Indeed, respected”). the court mentioned Cline, (paraphrasing at 281 617 N.W.2d more the Fourth Amendment than ten 8); Carter, I, article section State analysis in an fewer than spans times (Iowa 1968) 722, (paraphrasing in the North pages Report- seven Western 8); Cameron, I, section State v. article (“The See, e.g., foregoing er. id. at 536 (1962) 117 N.W.2d Iowa ..., Strip parol- discloses some tribunals I, 10), section over- (paraphrasing article rights ee of all Fourth while Amendment Bowers, grounds by ruled other them.”). others Dilute In addition to those (Iowa 2003). If not Amendment, to the Fourth references provi- directly quoting paraphrasing to the Fourteenth Amend- court referred See, sion, at least it has been mentioned. The court that “the ment. noted Fourth Tonn, 195 Iowa e.g., State against is enforceable Amendment (mentioning the iden- N.W. through States the Fourteenth Amend- I, wording tity between the of article sec- ment.” at 538. Were the court inter- Id. wording of the Fourth tion 8 and the Constitution, state- Cline, preting the Amendment), abrogated by superfluous. ment would have been Both If was inter- N.W.2d at 291.31 Cullison incorporation and the Four- I, doctrine majority article as the preting section Amendment are irrelevant claims, teenth the case is a distinct and then enforceability of the Iowa Constitution’s inexplicable oddity. For Cullison does I, protections.32 quote repository article section and neither does II, tradition, majority article section 5 of the Iowa Constitu- keeping In with this I, tion). provision to today in full. The Iowa constitutional quotes article section 8 is, however, I, addition, which the Cullison court refers majority also mentions article I, II, article not article section but rather thirty There can section 8 more than times. id.., strips voting rights see which interpret- section in this case is be no doubt the court convicted of infamous from individuals ing article section 8. crimes, generally 43.24 see Chiodo v. Section Thus, Panel, (Iowa 2014). notes, the Iowa Constitu- 846 N.W.2d 845 32. As the provi- go Cullison discusses three constitutional tion does not unmentioned Cullison. Amendment, necessary (setting the Fourth its forth the text sions: See 173 N.W.2d 530 interpreting in that when this state’s consti-

Also, resolution of the issue while the among rely interpret- the tution we on federal cases dissension caused Cullison members, they only it were able to the ing seems the Federal Constitution court’s important point: reasoning the con- extent that the of those cases on one agree Ochoa, the court was inter- us. See 792 N.W.2d at provision persuades stitutional dissents, majority the only like not com- Both 267. Cullison relied almost preting. the Fourth Amend- pletely doing on federal cases while little opinion, mentioned (Larson, J., dissent- analysis persuasiveness, at 542 to establish their ment. See id. (“[T]he that, protection afforded if ing) but also hinted the United States States United had addressed the issue Fourth Amendment only case, unreasonable against is in the it have de- presented Constitution would (Snell, J., ”); at 544 dis- id. to that tribunal’s interpretation. searches.... ferred (discussing Fourth Amendment Neither approach See 173 N.W.2d at 535. senting) And, like protections). seizure permissible resolving search and is a method of cases neither dissent men- majority opinion, organic under our state’s document. See I, Thus, Ochoa, Cline, 267; article section 8. Cullison 792 617 tioned N.W.2d that, in addition to a was a 5-4 decision N.W.2d at 285. An earlier case’s inconsis- consisted of two majority opinion, dissent- tency our established current deci- justice and no even men- ing opinions, methods almost compels sional us to recon- I, section 8 of the Iowa tioned article Con- viability. sider the case’s continued stitution. legal There are also factual and distinc-

Yet, invisibility of article spite compel tions in Cullison that us to recon- Cullison, I, section 8 in validity. sider its continued Cullison’s unequivocally case asserts the case’s hold- part reasoning conclusion was based in I ing provision. under that would draw questionable light that is now of subse- in the face opposite conclusion quent developments. cited a Cullison unmistakable, explicit indications to the bevy secondary of federal cases and au- contrary. question is without Cullison proposition parolee’s thorities for the I, a holding under article section 8 of the equal protection right might be violated so, being That I would Constitution. by admitting evidence obtained in a war- is not conclude Cullison substantive au- rantless search. 173 at 538. See I, 8, thority under article section and we Afterward, Wisconsin, Samson Griffin are not to follow in this bound Cullison California, Knights States v. case. upheld of probation- warrantless searches Samson, parolees. ers and 547 U.S.

Even if one to concede were somehow 843, 857, 2193, 2202, 165 S.Ct. L.Ed.2d article interpreting Cullison (2006); Knights, Constitution, U.S. section 8 of the Iowa there 151 L.Ed.2d not to apply are numerous reasons Culli- (2001); Griffin, holding son’s to this case. See State v. (Iowa 2011) 3169-70,

Bruce, S.Ct. L.Ed.2d (noting (1987). Clearly, development of this despite principle of stare decisis we previous must reconsider unsound deci- area of the law shows this concern no sions). First, longer according we have since Cullison held serves as a basis for of- holding any companion, ty, is not under Fourteenth Cullison’s

Amendment, II, and article section 5 of the provisions, may it these odd as seem. According majori- Iowa Constitution. search). support the there or established law-abiding equal citizens fenders and argument was not even an Because there protections. search cause, suspicion probable of reasonable factually dis- most What makes Cullison not have to consider whether the court did pro- a consent-to-search its lack of tinct is suspicion level of individualized some a This is parole agreement. in the vision constrained officer discretion might have is distin- why reason Cullison significant making the warrantless point Baldón, pro- in which such from guishable Here, constitutionally permissible. search analysis of the focus of our visions became cause to undisputed probable there.was Baldón, 829 and waiver. See consent residence. support the search of Short’s issue (explaining the N.W.2d at 800-01 clearly distin- presented thus Cullison court). majority chooses to the before the legal and factual scenario for guishable without important distinction ignore reasons, For all these the broad decision. opinion which makes the analysis, further espoused ap- in is not principle Cullison the decide this suspect. How can the concrete facts propriately applicable to the consent-to- discussing case without Kern, by this case. presented pro- contained Short’s Cf. provision search (“[T]he legal at 170 need for new agreement? bation is best considered when facts doctrines Also, performed the parole officer application an support exist in a case 173 N.W.2d at See search Cullison. way pur- in a that reveals its the doctrine a dis- previously have drawn 539-40. We rationale.”). Therefore, I would pose and performed searches tinction between holding adopted by the broad conclude law enforcement officers and general Cullison, relying on that a majority, by corrections authori- performed searches all cir- required search warrant is under ties; for the two searches justifications any person’s cumstances for the search of Kern, See 831 N.W.2d are different. home, treating from prevent does not us parolee a search of a could (explaining differently law-abiding from probationers rubric” because special-needs not fit “the I, purposes citizens for of article section entangled significantly “the search was operation”); larger with a law enforcement hold- The determination that Cullison’s Ochoa, (distinguishing 792 N.W.2d at 289 not control the outcome of this ing does officers and performed parole searches analy- just starting point case is by general law en- performed searches majority recognizes, we have sis. As forcement). case, general law en- In this dogmatically inter- repeatedly declined Thus, performed forcement search. in the manner the pret article section 8 reject parole used to the reasons interprets United States importable are not search Cullison Amendment, Fourth the obvi- despite this case. This further diminishes the two ous textual similarities between versatility of precedential Cullison. See, e.g., (explaining id. at 170 provisions. Cullison, doc- special-needs in the Fourth Amendment Finally, as cannot Ochoa, concluding the doctrine by any level of trine supported was not Ochoa, pa- “to make an end-run” around 792 be used suspicion. individualized the Iowa rights rolees’ under Constitu- (noting police per- officer N.W.2d at Ochoa, tion); cause); (holding 792 N.W.2d at 267 any search without Culli- formed analyzed are to be son, searches and seizures (concluding at 540 cause, under the Iowa Constitu- independently presearch probable reasonable or tion); Cline, (declining 617 N.W.2d at 283 present validity, to its was not essential exception faith to Iowa’s overall search and seizure adopt good jurisprudence, “to the Iowa exclusionary reasoning distinguishable rule under Constitu- be- Griffin’s Indeed, tion”). blindly police were we “to follow cause deputies, pro- and sheriffs officers, abdicating be precedent,” we would bation searched Short. See 5 federal LaFave, Wayne role in govern- our “constitutional state R. Search and Seizure: A Cline, 617 N.W.2d at 285. Treatise on the ment.” Fourth Amendment 10.10(c), § at 542 La- [hereinafter said, That we have not discarded federal Fave, Search and Seizure (observing a ] precedents panoply from the of available performed by police officers could Ochoa, In we persuasive sources. declined pass special- not muster under Griffin’s Supreme interpreta to follow the Court’s rationale). needs Samson, Fourth Amendment in tion of the Later, path a taking Knights, Supreme instead under the Court rejected constitution that an very our own war- confronted issue similar to one any 118,122 “without parolees rantless searches before us in this case. 534 atU.S. 591, suspicion There, or limitations to at 151 particularized S.Ct. L.Ed.2d at 504. a Ochoa, scope probationer, subject the of the search.” 792 who proba- was to a 291; Samson, at see also 547 N.W.2d U.S. tion-search condition similar to that con- 857, 2202, at 165 probation at L.Ed.2d at tained in Short’s agreement, was (holding “the Fourth Amendment suspected vandalizing 262 does a business dozens a officer from prohibit police 114-15, conduct of times. See id. at at S.Ct. 589, search of a ing suspicionless parolee”). 151 L.Ed.2d at 502-03. After police so, however, In doing emphasized the detective suspicious activity observed out- “respectful probationer’s consideration” to which Su side the apartment preme precedents objects Court are entitled. suspicious See viewed in the vehicle of Ochoa, 267; Baldon, detective, at the probationer’s accomplice, the cf. (“In analysis, 829 N.W.2d at 790 the final probation-search who knew of the condi- tion, our right principles under of federalism to probationer’s apartment. searched the stand as the final word on the Iowa Consti See id. at at S.Ct. settled, long-standing, tution is good L.Ed.2d at 503. The search uncovered law.”). mind, I Keeping that turn now to suggesting probationer evidence the vandal, those precedents. and he was arrested on federal 115-16, charges. criminal See id. at The Supreme upheld Court has twice 589,151 S.Ct. at L.Ed.2d at 503. probationers warrantless searches of un- der Griffin, the Fourth Amendment. In Knights suppress moved to the evidence probation officers conducted a during warrantless obtained the warrantless search of probationer’s search of a home apartment, arguing under a his the search violated probation regulation Wisconsin that al- the Fourth Amendment. See id. at lowed warrantless searches based on “rea- 122 S.Ct. at 151 L.Ed.2d at 503. The grounds.” sonable at U.S. 107 district court found law enforcement had “ (internal at 97 L.Ed.2d at 715 suspicion’ S.Ct. ‘reasonable to believe that omitted). quotation Supreme Knights marks incendiary was involved with ma search, terials,” upheld Court finding justi- granted it but “nonetheless the mo special fied suppress ground needs of Wisconsin’s tion to on the 876,107 probation system. See id. at ‘investigatory’ S.Ct. search was for rather than 3169-70, at Though 97 L.Ed.2d at 719. id. ‘probationary5 purposes.” See representative Supreme Appeals for the Ninth Court’s Court Circuit rejecting Knights’s argument, the Su- affirmed, relying on its earlier decisions pro focused on the balance of Knights’s preme Court the search condition hold “ gov- privacy interest and ‘must be seen as limited individual’s bation order searches, interests. See id. at stop legitimate must short of ernment’s probation 151 L.Ed.2d at 505. (quoting See id. S.Ct. at investigation searches.’” Court, proba- According Knights, F.3d United States (9th Cir.2000)). expectation pri- tioner has a diminished vacy probation is a criminal sanc- because reversed A unanimous reasonably an individual deprives tion appeals. the court of See id. ruling enjoyed by law- ordinarily of freedoms 593, 151 122, 122 at 507 L.Ed.2d S.Ct. Further, abiding citizens. See id. pro further (reversing remanding government has a le- Court reasoned first noted ceedings). Supreme The Court gitimate supervising probation- interest in of California had Supreme that the Court ers, high probability of reof- given their to this pursuant searches already upheld 120-21, “ fending. id. at 122 S.Ct. at See condition ‘whether probation California 592, weighing After 151 L.Ed.2d at 506. the is to monitor purpose the of the search interests, unani- Supreme the Court law some other probationer or to serve ” war- mously upheld police detective’s 116, 122 See id. at purpose.’ enforcement apart- of the probationer’s rantless search 590, (quoting L.Ed.2d at 503 at 151 S.Ct. suspicion “supported by ment reasonable 668, Woods, 21 88 Cal. People v. Cal.4th proba- authorized a condition of 1019, (1999), 88, P.2d 1027 Rptr.2d 981 122, 593, at S.Ct. at 151 tion.” Id. 122 denied, 1023, 1429, 120 529 S.Ct. cert. U.S. at 507. L.Ed.2d (2000)). 146 L.Ed.2d 319 balancing approach Supreme to base its The Supreme The Court declined evaluates a argued employed Knights rationale in holding on the “consent” Court reasonableness, touchstone Zap “[t]he in v. search’s by the Government cases such as 624, 1277, States, Amendment.” See id: at of the Fourth 328 U.S. 66 S.Ct. 591, 118-19, (1946), 151 L.Ed.2d at 122 S.Ct. at 90 1477 and Schneckloth L.Ed. Bustamonte, 218, 2041, tests for (explaining 505 how the Court 412 U.S. Samson, (1973). reasonableness); 547 534 see also Knights, 854 See 36 L.Ed.2d 848, 2197, 118, 591, 165 L.Ed.2d L.Ed.2d at 126 at at 122 S.Ct. at U.S. S.Ct. U.S. test). balancing (explaining it at 256 Court found at 504-05. that in its bal- thus held acceptance Supreme whether Court did not need decide considerations, these various no ancing constituted consent of of the search condition neces- suspicion more than reasonable complete in of a the Schneckloth sense probationer’s of a sary See to conduct a search rights. waiver of Fourth Amendment 121, 591, at Knights, at house. See at at 151 L.Ed.2d id. S.Ct. (“We Instead, at hold at 151 L.Ed.2d it concluded that the search S.Ct. the balance of these considerations Knights’s apartment was reasonable un suspi- requires no more than reasonable ap Fourth Amendment “general der its probation- to conduct a search of this totality cion proach ‘examining ” house.”). circumstances,’ way, another Expressed er’s considering probation held that “law-enforce- circum being search condition as salient Robinette, who have probationers 519 ment searches (quoting stance. Id. Ohio 417, 421, 136 of a search condition are 33, 39, 117 been informed L.Ed.2d U.S. S.Ct. (1996)). suspicion upon individualized permissible explicitly looking court in during committed Cullison behavior of criminal in 122 factual situation that case to determine See id. at probationary period.” (Souter, of the extended search. the reasonableness at 507 151 L.Ed.2d at S.Ct. (“We Cullison, 173 N.W.2d at 539 must J., concurring). look now to the factual situation here in- dispute no reasonable There can be reasonableness of the volved determine wheth- the determination controls Knights ” added.)). (Emphasis extended search.... Short was constitutional er the search of Completely diverging from this reason- to the Fed- the Fourth Amendment under approach we ableness utilized Cullison was, Knights, Short like eral Constitution. emphasizing this court’s traditional he had a diminished thus probation, rule,” preference explained “warrant See id. at privacy. expectation Ochoa that the reasonableness clause at 151 L.Ed.2d 505. Like S.Ct. at the Iowa “cannot be used to Constitution Knights, law enforcement government override the Warrant of the Iowa Clause” legitimate interest in this case had Constitution, lest the warrant clause be Short, probation- as it does all supervising surplusage. rendered 120, 122 ers. id. at S.Ct. 291; (criticizing see also id. at 289 Although the search in L.Ed.2d at 506. reasonableness test as “based not on the by reasonable sus- Knights supported was particular larger facts of a case but on picion, supported the search of Short policies purported bolstered needs cause, higher suspi- a level of by probable enforcement”). of law in majority this at cion. See id. S.Ct. rely case wants to on Cullison and its the relevant factual L.Ed.2d 507. Given analysis of the Fourth for Amendment de- level higher suspi- similarities and the search, termining the a reasonableness of case, in this supported cion that disregards but then it in and in Ochoa incontestably reasonable this search was Instead, majority case. utilizes Culli- permissible therefore under holding necessity son for a for the broad Fourth Amendment. search warrants under all circumstances course, really nothing Of the conclusion reached the when this had to do with the of the Supreme holding acknowledge under the case. While I United States Court in deciding whether to follow the Fourth Amendment does resolve the any Court’s lead down constitutional path question constitutionality of the of the this court is not bound to use the same I, search under article section 8 of the vehicle, analytic there should at least be notes, majority As the Iowa Constitution. analytical consistency. some this court has resisted reasonableness as constitutionality the measure of the of a authority Even our own open leaves This, search under the Iowa Constitution. possibility exception clear of an to the I, even though article section 8 mirrors the warrant requirement under certain cir- Federal regarding Constitution unreason- Ochoa, cumstances. See 792 N.W.2d at searches, able seizures and and this court’s (positing way resolving one the is- “[tjhere own statement that is of course accept sue in the case would be to a new that, little light nearly doubt of the exception requirement). to the warrant identical language in article section 8 have counseled that a war- repeatedly We Amendment, they and the Fourth were it rantless search is unconstitutional unless generally designed scope, with the same to the warrant exception falls within an Ochoa, See, Lowe, import, purpose.” e.g., See requirement. (Iowa 2012) (explaining N.W.2d at spite 267. This is also of this N.W.2d the Search and Seizure rights if it under unreasonable search is warrantless Id. Clause.33 recognized excep- within a not fall does (“A Cline, war- tion); at 282 617 N.W.2d Baldón, provision held a search ... se unreasonable per is rantless search agreement in a did not parole contained excep- recognized it falls within unless consent to search under constitute tion.”). exceptions recognized Our But, See id. at 803. it Iowa Constitution. (1) include: searches requirement warrant reasoning to understand important with coupled cause probable founded reaching this conclusion. we relied on (2) circumstances; consent exigent First, we aside from consideration the set (3) arrest; searches; incident to searches dealing probation agreements with cases (5) searches; and communi- view plain dealing we are with here. See like those Kern, 831 ty-caretaking searches. agreements probation at 795. We said id. the commu- (explaining N.W.2d at 172-73 analyzing limited value in the con- were of Watts, exception); State nity-caretaking probationers because “maintain sent issue (mention- (Iowa 2011) 845, 850 801 N.W.2d than vastly superior bargaining power require- to the warrant ing exceptions four parolees.” approv- See id. We noted ment); Naujoks, State many vastly courts find that this al (Iowa 2001) (listing “well-recog- four superior bargaining power probationers require- the warrant exceptions nized probation agreements “renders consensu- ment”). expressed has al.” See id. States the United opinion Second, we noted that courts other “reconstructed,” “reengineered,” has rejected had consent derived from states our search and seizure “reconfigured” theory uphold- as a parole agreements protec- resulting law in the erosion because such a ing parolees searches individuals under tions afforded to there- parole condition of was coercive and Amendment, expressed an un- Fourth at 796. It was involuntary. fore See id. ” expanding any such

willingness to consider if lack of free will “no ‘choice’ a this I exceptions under our Constitution. prison, from person wanted to be released to even consider well- think the failure determined our decision on consent. which providing excep- recognized jurisprudence Samson, 547 at 863 n. (quoting See id. U.S. requirement wrong, tions to the warrant at at 2206 n. 165 L.Ed.2d duty our to the citizens uphold and fails to (Stevens, J., dissenting)). 4 267 n. of Iowa. Baldón, surveyed in we the aca- Finally, noted, recognized one ex- previously

As community and noted it had also demic requirement warrant under ception treating in consent recognized weaknesses consent. State v. Reini- voluntary our constitution is searches in the con- searches as (Iowa 2001). er, at parole agreement. text of a See id. N.W.2d We, therefore, the reasonableness decided Baldón exception, 797-800. “Under vastly unequal bargaining the Search and Seizure requirement of based on parolee, an individual con- of the the coercive atmo- power is satisfied when Clause Baldón, and “no choice” concern- sphere parole, at sents to a search.” ing the search condition. We concluded The consent waives an individual’s 791. pa- specific question a provision whether with a consent in a addressed 33. Baldón dealt agreement by parolee a consti- executed parole agreement. 829 N.W.2d at 789. role See case, support waiver of valid consent to by majority in that tutes properly As noted rights.” at Amendment Id. 792. has not Fourth United States "[t]he analysis does not end on consent alone. these circumstances [was] “consent under surrounding circumstances of the real,” acceptance we held Baldon’s not In search itself must also be considered. agreement did not constitute parole Ochoa, leading parole our search case Id. 802-03. voluntary consent. motel police parolee’s officer searched course, similarity there is no between Of any particularized suspicion room without Baldón and the search of the search of and without a warrant. 792 N.W.2d at Here, dealing proba with a Short. we Though explicitly considered its A of the courts agreement. tion to create a new possibility, we declined the nation that have considered across exception requirement to the warrant that have concluded “consent-search issue (“We parole context. See id. at agreements consti provisions probation would, essence, find the facts of rights.” tute a of search-and-seizure waiver ... this case do not establish one of the cases); also, e.g., (citing Id. at 792-93 see exceptions requirement.”). to the warrant Barnett, 415 F.3d United States v. Instead, warrantless, suspicionless we held (7th Cir.2005) (“Constitutional rights like parolees searches of invalid “even under a waived, rights provided other can be so, analysis.” In doing reasonableness Id. it knowing intelligent, the waiver is as holding we noted our did not reach a few here.”); Gauron, 112 Idaho questions, including “whether individual- (1987) (upholding P.2d suspicion amounting ized to less than probationer warrantless search of based on probable may cause be sufficient some in probation agree consent contained support contexts to a focused search” Absher, ment); People v. 242 I11.2d 351 general law enforcement. Id. 291. We IlLDec. 950 N.E.2d question also did not reach the whether a (upholding suspicionless search based on warrant even necessary would be to limit search). In consent to a warrantless con authority law enforcement’s to search of- trast, jurisdictions that only a few have words, fenders. See id. other Ochoa proba the issue have concluded considered open question left whether a warrant- voluntarily tioners consent to these do less search of a parolee, supported indi- Baldón, provisions. may suspicion, vidualized be constitutional- cases); also, (citing N.W.2d at 793-94 see valid, ly even when no other recognized State, e.g., 373 So.2d Grubbs exception warrant applied. (Fla.1979) (holding provision probation a in set forth in primary We Ochoa the con- consent, agreement not did establish but siderations we used to resolve the in issue stating “probationary may that status be case, intending that those consider- probable used as a factor to establish guide ations future cases. We traced cause”). show, Clearly, as these con cases English events back to the Crown’s use of provisions probation sent or waiver in warrants,” “general “open-end- which were agreements not do suffer from the same time, duration,” place, ed as to but in constitutional infirmities as found Bal- warrants nonetheless. See id. at 269. In dón in the parole Again, context. the ma Eighteenth Century English one case chal- issue, jority avoids analyzing the consent warrant, lenging general a an esteemed despite being it argued raised and jurist “rejected arguments general parties. necessary to advance the warrants were upheld

While a of courts have Id. at government.” ends of 270. The provisions against suspicion large waiver constitution- at judge quipped, “[I]f context, search, ground al attack in ... probation should be whose (internal require the probable-cause contexts of quota- Id. would be safe?” home instance, omitted). id. at 279. For to ment. See This resistance tion marks excep has carved out an warrants, Supreme Court unrestrained, ex- suspicionless related law “special tion for needs” not caselaw, was “well- English pressed enforcement when a warrant and individu Id. colonies.” known in the American unnecessary. are See id. suspicion alized in the American colonies experience development special- of the (explaining similar, issued under but the warrants also, e.g., Nat’l Trea exception); needs see (ex- See id. at a different moniker. Raab, v. Von 489 U.S. sury Emps. Union gen- “allowed writs of assistance plaining 103 L.Ed.2d violations”). for customs eral searches (1989) (holding the U.S. Customs than were broader of assistance” “[W]rits drug-testing program presented Service’s Id. England. issued general warrants special justifying departure need from returnable after exe- The writs “were not probable-cause require the warrant and cution,” instead “to authorize continuing ments); Prouse, Delaware v. 440 U.S. life of the during the general searches 1396-97, 654-55, 59 L.Ed.2d S.Ct. to whom the sovereign.” Id. Officials (1979) (“In those situations possessed were issued unlimited dis- writs precludes which the balance of interests counterparts Like their cretion. See id. upon quantum insistence ‘some of individu Atlantic, strongly the colonists across safeguards gen other suspicion,’ alized authority con- open-ended opposed erally upon relied to assure that the indi See id. ferred the writs. expectation privacy vidual’s reasonable background reasoned this historical We ‘subject to the discretion of the Amendment, “by impli- the Fourth (Footnotes official in the field....’” omit 8 of the Iowa cation” article section ted.)) Camara, (quoting Constitution, an intent to limit indicated 937). 1733, 18 S.Ct. at L.Ed.2d at cases See id. at arbitrary searches and seizures. however, implications, criminal a view addition, 272. In a review of the circum- that some restraint on law en remained surrounding adoption stances necessary. See forcement’s discretion was confirmed Federal and Iowa Constitutions Ochoa, (describing ap at 280 against the sought protect the framers plication special-needs exception government abusing power. its See id. also, implications); with criminal see cases ongoing current debate over Despite Edmond, City Indianapolis v. e.g., accepted whether the framers warrantless 32, 44, 121 447, 455, 148 L.Ed.2d S.Ct. U.S. searches, suggested review the historical (holding individualized sus not intend to allow law the framers did necessary checkpoints at narcotics picion “broad, unlimited” perform enforcement to control). general when interest was crime at warrantless searches. Id. 273. search, implications Whatever the of the development the of the We also traced protection against reasoned unre we Fourth Supreme States Court’s government depended intrusion strained jurisprudence. Amendment See id. at suspicion, on some form of individualized relevant (discussing precedents). “preestablished or neutral particularity, Ochoa, noting exceptions criteria,” After for automobile not on a warrant. See searches, arrest, 280; Raab, searches incident to and 792 N.W.2d at Von 489 cf. 1391, required still a 109 at 103 L.Ed.2d exigent circumstances at S.Ct. U.S. cause, (explaining primary purpose one showing probable described at 703 citi merely is to advise a relaxation in other warrant serves the Court’s 538 authorized). at L.Ed.2d at legally 126 S.Ct. at a search

zen that (“The very suspieionless limits on law enforcement search is of those None the Fourth was intended evil Amendment present was Ochoa. out.”). declared, stamp The dissenters closely related United Turning requirement suspi- “The of individualized cases, we reviewed Supreme Court States cion, iterations, in all is the its shield Ochoa, and Samson. See Griffin, Knights, guard against Framers selected to the ev- (describing the Su- at 280-83 action, arbitrary caprice, ils of harass- of Fourth application preme Court’s ment.” Id. at at S.Ct. probationers principles Amendment at 268. Law enforcement L.Ed.2d here Samson, discussing in which parolees). fact, suspicion; had this individualized warrantless, upheld probable support cause existed to parolee, of a we fo- search suspicionless Short’s residence. Even the by on the dissent authored primarily cused dissenters, likelihood, Samson in all would joined by Justice Stevens and Justices upheld have the search under these cir- Ochoa, Breyer. See Souter majority ig- cumstances. The chooses to (noting “vigorous at 282-83 N.W.2d analysis. nore this dissent”). discussion of the dissent Some necessary. survey did not end at the Sam- is therefore Ochoa’s dissent; however, rejection son our of war- dissent, Justice In the Samson Stevens rantless, suspicionless parolees searches of against uphold- inveighed largely flowed from it and the historical entirely ing suspicionless “an search un- narrative. We reasoned that law enforce- by any special need.” 547 U.S. supported having power parol- ment “a to search at 165 L.Ed.2d at at time, any anywhere, ee at for anything, J., (Stevens, dissenting). According to home, including the any suspicion without Justices, majority “jetti- the three any closely kind” resembled too suspicion without soned” individualized general “despised” by warrant our fore- substituting any standards which to Ochoa, bears. See at 287. “rein in officers and furnish a bulwark Further, suspicion, without some level of arbitrary against the exercise of discre- only even if suspicion, reasonable there 860-61,126 2204,165 at at tion.” Id. S.Ct. no limit on whether a search could be at L.Ed.2d dissent never hinted conducted or on the scope. search’s however, suggested, the bulwark constitution, id. at 288. Our we inferred against arbitrary government action was experience, from the federal pro- aimed to under all circumstances a search warrant. “[sjuch hibit unbridled discretion.” See id. contrary, On the in all the dissenters’ in- flaying majority’s After the Samson dubi- dignation majority’s approach, for the even reasoning, we parolee ous concluded “a they dispensed would have with a search broad, may not subjected be warrant- warrant under the circumstances. See id. general less searches law enforce- 126 S.Ct. at L.Ed.2d any ment officer without particularized (arguing Knights do not Griffin suspicion or limitations to scope searches, support “suspicionless conducted search.” See id. at 291. pursuant grant to a blanket of discretion by any procedural untethered takeaway safe- from Ochoa was that the guards”). parolee And the framers of the Federal search of the was unconstitutional well, Constitution would have done there no so as because was limitation whatsoev- according to police the three dissenters. See id. er on the officer’s discretion. See Knights. in probationer whether search regarding (taking position no id. reasoning, judgments which rests on That a warrant” that other than “means some probationer’s privacy expectations about power might enforcement’s limited law similarly applied parol- to and which was muster). Ochoa, In pass Samson, criticized as “to- ees in has been on which even a hunch officer lacked police LaFave, Search and tally circular.” See 5 id. at 288. This the search. See to base 10.10(c), § (explaining at 544 Seizure “stunningly was power search sought-after ); logic Knights circularity of the Court’s broad,” enforcement enabling law Samson, 857-58, at 547 U.S. at “books, records, dia- any parolee’s search (Stevens, J., 2202-03, L.Ed.2d at 263 ries, invoices, surroundings” intimate (chastising majority’s com- dissenting) A See id. at 287-88. without limitation. “faulty and “circular syllogism” bination of could not be reconciled power so broad so, Even it is undeniable that reasoning”). govern- a constitutional limitation alone, probation- status “by virtue their authority. mental search ‘ enjoy liberty not the absolute ers “do case, in conducted in this The search ’” Samson, is every which citizen entitled.” the searches conducted comparison to 848-49, at 547 U.S. at S.Ct. Baldón, distinguish- clearly Ochoa (quoting Knights, at 257 L.Ed.2d in this case “met the able. The search 151 L.Ed.2d at S.Ct. Amendment stringent” Fourth most 505). pro- observation This commonsense standard, See “probable cause.” for differential treat- support vides initial Flynn, 664 F.2d States v. probationers law-abiding ment of citi- (5th Cir.1982) (declining to con- n. 8 under article section 8 of the Iowa zens given should be airplanes whether sider Constitution. treatment as cars the same constitutional Iowa, probationers the lowest level do existed). More- probable cause because enjoy liberty law-abiding to which narrow, over, enabling offi- scope chapter are entitled. Iowa Code citizens only for evidence of the cers to search a “corrections continuum.” 901B sets forth of commit- suspected crime that Short was 901B.1(1)(2013). § Proba- See Iowa Code pres- these circumstances been ting. Had tion, parole, like falls on “Level Two” Ochoa, joined might this court have ent continuum, see id. corrections nine Justices of the United States with the 901B.1(1)(6), “Lev- § sandwiched between willing to discard Supreme Court One,” “[njoncommunity based correc- el in Samson. requirement search-warrant 901B.l(l)(a), sanctions,” § see id. tions involving parolees fol- Our search of cases Three,” “[qjuasi-incarceration and “Level nothing to the lowing has indicated Ochoa 901B.l(l)(c). sanctions,” § Level see id. Kern, 881 N.W.2d at 176 contrary. See into three levels of two is further divided probable officers lacked cause (concluding sanctions, contemplate which at least all of exigent-circumstances search of perform corrections authorities. supervision by Baldón, home); 829 N.W.2d at parolee’s 901B.1(1)(6)(l)-(3). § Probation- id. that it (noting argued the state never monitored sanctions “are subject ers suspicion reasonable to search had even compliance” with “adminis- monitored parolee). supervision sanctions” correc- trative above, id. our constitutional inde- authorities. -See As noted tions 901B.1(1)(6)(1). sanctions, Supervised § from pendence applying frees this court level, probation su- regular States the middle reasoning the United any proba- conditions pervision the warrantless uphold used to compelled any or court order. See id. also be to “cooperate tion agreement 901B.1(1)(5)(2). Finally, § intensive su- treatmenVrehabilitation/monitoring pro- sanctions, subject- to addition pervision gram” specified by corrections authorities. monitoring, to intense ing probationer 45.2(l)(i). a Id. r. These restrictions 201 — monitoring, day re- provide for “electronic strong significantly are limit proba- a day programming, pro- live-out porting, freedom, but as the tioner’s statute makes on work release or who grams persons for are plain, these additional conditions to 321J, institution- chapter have violated probationer might subjected. which a be al work release under section 904.910.” Iowa section 907.6 also Code authorizes 901B.1(1)(6)(3). may readily § Id. As be impose probation courts to conditions. seen, scheme envisions legislative sub- may not impose Courts unreasonable or jecting probationers governmental all to arbitrary Rogers, conditions. State v. scrutiny ordinary to which no citizen is (Iowa 1977). Otherwise, N.W.2d depriving thus even the lowest subject, authority courts’ under this provision is probationers degree level of some of liber- Valin, broad. State v. ty- (Iowa 2006). approved have We a may conditions further Probation probationer court’s order that a spend six abridge probationer’s liberty. Iowa facility, months in a residential treatment grants authority section 907.6 broad Code even when it meant displacing proba- doing so: Ogle, tioner’s child. See State v. subject are to Probationers the condi- (Iowa 1988) (finding dis- judicial tions established district trict court did not abuse its discretion department of correctional services sub- condition). imposing probation when court, ject approval any holding For its that a court is within its additional reasonable conditions which probationer discretion even to tell a where department may the court or district live, and with Ogle exemplifies whom impose promote rehabilitation of the the impressive loss of freedom to which protection defendant or of the communi- probationers subject. See id. Such ty. may Conditions include but are not deprivation necessary promote regulations gen- limited to adherence to probationer’s protect rehabilitation and to erally applicable persons released on community. (upholding See id. at 384 parole including requiring unpaid condition); probation see also Code community service pursuant as allowed § (providing may 907.6 conditions be im- to section 907.13. posed promote “to rehabilitation of the Among parole regulations to which a protection defendant or of the communi- probationer may subject require- be is the ty”). probationer ment “secure and caselaw, statutes, Our regu- our and our employment.” maintain Iowa Admin. lations are evidence of a fundamental no- 45.2(l)(c) (2013). Code r. Another 201 — They tion in our law. that deeply show regulation prohibits probationer from system embedded our of law is the travelling county outside his or her of resi- crimes, notion individuals sentenced for in- permission. dence without r. See id. 201— 45.2(l)(d). cluding pris- those who remain outside a state, leaving Before walls, enjoy comple- on’s do not the same probationer must “secure advance written ment of liberties permission.” law-abiding as those of probationer may Id. A Probationers, change permission. ordinary residences without Id. citizens. unlike cit- 45.2(l)(e). izens, r. A probationer may comply stringent must condi- 201 —

541 probable through diligent investigation supervision of the watchful tions under burgla- cause to believe Short committed authorities. That corrections courts and applied for a search ry, differential law enforcement this treatment permits our law warrant issued warrant. While search from this funda- It follows is undeniable. invalid, ultimately to be may be was determined probationers mental notion that finding by indepen- probable-cause treatment under some accorded different challenged. officer was never govern- judicial dent provisions, provided surprisingly, property the stolen was con- Not authority adequately is mental apartment. found at the strained. consent, requirement signifi- The probable-cause on jurisprudence our

Besides cantly restrains law enforcement discre- governmental one additional constraint considerably tion. This standard is more suspicion. As authority is individualized Cullison, probationers’ rights than the purpose protective “the basic we said in which protection], reasonable-suspicion upon as rec- standard search and seizure [the in Knights upheld. this the search See 534 in countless decisions of ognized Court, at 122 S.Ct. at 151 L.Ed.2d safeguard privacy and U.S. is (upholding at warrantless search of a against arbitrary 507 security of individuals supported by reasonable sus- by government probationer officials.” See invasions added). White, Alabama v. 496 (emphasis picion); at 538 As see also 173 N.W.2d 325, 330, 2412, 2416, 110 that have addressed U.S. 110 S.Ct. all of the cases confirm, (explaining it this L.Ed.2d 309 of this nature is searches suspicion demanding is a less arbitrary suspicionless search “[Reasonable cause”); probable than the crucial distinction between this case standard (Iowa 2004) Lewis, N.W.2d the similar cases that have come be- (“The Kern, suspicion at reasonable and articulable fore this court. See 831 N.W.2d cause.”). probable lacked ... is less than (concluding probable officers standard cause); Baldón, reasonable-suspicion re- (noting satisfy at 789 To 829 N.W.2d only spe- an officer need have argued quirement, never that it had individ- the State Ohio, cific, Terry articulable facts. See parolee); to search suspicion ualized Ochoa, (noting police at 288 U.S. (1968). Griffin, In any without indi- L.Ed.2d performed

officer Cullison, instance, States Court suspicion); vidualized tip proba- unauthenticated that a there was no “rea- found an (finding N.W.2d at 540 “ ” might guns have’ ade- support tioner ‘had or probable sonable or cause” search). suspicion. 483 quate supply reasonable proba- That the officers here had at 107 S.Ct. at 97 L.Ed.2d apartment to search Lorenzen’s U.S. ble cause determined, 720. The between the search negates comparison however, tip supply the same would not despised case and “the performed Ochoa, cause. See id. probable 792 N.W.2d general warrant.” See general It was the warrant’s con- at 287. Iowa, probable standard for “[t]he law upon ferral of unrestrained discretion person whether a of reasonable cause is impetus an for the enforcement that was a crime has been prudence would believe Fourth Amendment. See id. of a crime committed or that evidence particular located in the area to operat- might Short be The officers who searched Naujoks, arbitrary unrestrained or be searched.” ed under no such from law Rather, 108. Probable cause demands having established discretion. A that have suggesting requirement facts that strict officers enforcement a suspicion searching individualized before are linked to in the search sought items probationer pre- therefore alleviates our that items will activity and those criminal dominant concern in unre- Ochoa—that place to be searched. See be found in the general strained law enforcement could (Iowa N.W.2d Gogg, State probationer’s privacy intrude on a ri- Thomas, 1997); also State see through probationer’s possessions fle (Iowa 1995) (“The 658, 662-63 N.W.2d warrant, anytime, anywhere, without a to information presented to estab facts and evidence of a crime. find N.W.2d finding need not rise to the level lish at 287-88. with current Consistent rather, certainty, sup it must of absolute jurisprudence Fourth Amendment to a fair facts constitute ply sufficient I precedents, require our own would that contraband or evidence probability law enforcement must have at least indi- person place on the or in the will be found suspicion vidualized before law enforce- searched.”). Applying probable to be probationer ment officers can a search standard, we have invalidated cause the residence. See, e.g., on numerous occasions. searches Here, deputies probable established Kern, (holding 831 N.W.2d at 176 officers by applying cause for the search for a probable parolee’s lacked cause to search so, Deputy search warrant. To do Barto- (conclud Lewis, home); 675 N.W.2d at 525 “facts, information, carefully lozzi set forth ing probable lacked cause to make officers circumstances,” including police a re- entry backyard); a into a warrantless port describing and officer statements (Iowa Myers, (describ- burglary. § See Iowa Code 808.3 1997) (concluding that “there was not ing necessary applica- contents of an probable cause for issuance of the search warrant). tion for a search The exhibits Thomas, warrant”); application attached described in no cause (holding probable existed detail the items taken in the burglary that bar). in a persons probable search all deputies expected to in the find residence. requirement’s cause insistence on suffi Bartolozzi Deputy also described detail provides strong cient a protection facts searched, place to be far going so as to against arbitrary by searches law enforce a picture description include ment officers. residence, only which was later determined addition, In An concept probable independent by be incorrect. review judicial officer determined there was encompasses legal cause a number of rules probable granted cause for the search and designed to limit officers’ discretion and the search warrant Bar- Deputy based protect therefore to individuals’ In rights. scrupulous tolozzi’s and earnest efforts. Kern, example, rejected the argu- Though search warrant was later in- ment an individual’s invocation of constitu- address, validated due to an incorrect rights tional could be used officers to probable undisputedly cause was estab- probable establish cause. See 831 N.W.2d lished, subject and the correct address was at 176. posture We also held “defensive to the search. by an occupant response of home to an intrusion by police is not indicative of finding probable addition to the probable cause of a crime.” Id. These officer, judicial cause an independent legal rules further restrain officers’ discre- there were other forms of restraint on law perform tion to searches. enforcement’s discretion in this case. The warrantless, suspicionless rejecting the officers the granting concern greatest available there was no suspicionless perform authority searches). arbitrary controlling was that means of parolees Ochoa searches highly- integral pre- “minimal and authority requirements was neither Both defined,” “closely searches, linked to an identi- nor and both arbitrary vention of at 288. need.” See 792 N.W.2d special fied and have been present requirements deputies by executed The search met in this case. case, however, narrow and de- was agreement, Finally, probation in his appli- warrant with the fined. Consistent search. consented to the warrantless Short for, found, cation, deputies searched search, Short was on At the time of the shoes, televisions, and other items jewelry, theft, aggra- an third-degree for probation apart- be found they believed would misdemeanor. See Iowa Code vated investigation. Unlike based on their ment 714.2(3) (“Theft an degree § in the third is Ochoa, here was the search the search misdemeanor.”). Short could aggravated notion “contrary to the common-sense not prison up to have been sentenced must be scope of the search ‘the 903.1(2) (“When § a years. See id. two by the circum- strictly justified tied to and aggravated an mis- is convicted of person per- initiation rendered its stances which penalty ... the maximum shall demeanor ” (quoting at 288 missible.’ See to exceed two imprisonment be 1878, 19, at 20 392 Terry, U.S. being Rather than sentenced years.”). 904). Rather, search of L.Ed.2d sentence, a requested Short prison serve a that notion. consistent with Short was received a sus- suspended sentence and further scope The limited search probation. part sentence and As pended officer discretion. controlled voluntarily agreed bargain, of that Short was on knowledge Short The officers’ himself to warrantless searches subject law enforcement also restrained probation corrections au- by enforcement and law a situation like that discretion. This is not provision alike. The consent thorities J., in which the California Tyrell of In re search, but uphold not alone a basis to police officer’s upheld probation agree- in the Short’s consent juvenile probation- of a warrantless search in uphold- be a critical factor ment should er, was unaware though even the officer The lack-of- in this case. ing search probation. on See 8 juvenile in Baldón bargaining rationale we utilized 519, 33, 876 P.2d Cal.Rptr.2d 32 Cal.4th voluntary no consent to conclude there was P., (1994), by In re overruled Jaime search, pres- in the applicable is not Cal.Rptr.3d 146 P.3d Cal.4th ent case. (2006). requiring law enforce- holding law would not be alone We an individ-

ment to first ascertain whether may probationers enforcement possibility we avoid the probation, ual is on courts a warrant. Numerous state without “in the will search an individual officers pro- warrantless searches of upheld have probation. individual is on hope” bare parolees, supported some bationers and 430,146 P., P.3d Cal.Rptr.3d See Jaime requir- some suspicion and individualized restrain law en- adequately at 969. To See State v. Mont- ing probable cause. discretion, officers must not forcement 1329, 1331 115 Ariz. 566 P.2d gomery, suspicion, but only establish individualized (1977) constitutionality pro- of a (upholding to be ascertain whether the individual also Ochoa, warrant- permitted condition that 792 bation probation. searched is on enforcement); State by law one reason for less searches (explaining N.W.2d at 291 Fields, 1379, 1390 67 Haw. 686 P.2d both offender rehabilitation and societal (1984) a warrantless search of a (holding protection. agreed Probationers who have be supported must reason probationer likely to warrantless searches are more Gawron, 736 P.2d at 1297 suspicion); able by the law: abide pro a warrantless search of a (upholding probation The condition of that defen- bationer); Schlechty, 926 N.E.2d State person by dant consent to a search of his (Ind.2010) (upholding warrantless a law enforcement officer without a supported by rea probationer search of supervisorial proce- search warrant is a Bennett, suspicion); sonable dure related to his reformation and re- (rejecting Kan. 200 P.3d light habilitation in of the offense of probationer search of a suspicionless which he was convicted. With knowl- that the search must “be based on grounds edge may subject he be to a search suspicion”); a reasonable Parks v. Com time, any law enforcement officers he monwealth, 318, (Ky.2006) 192 S.W.3d 330 will be less inclined to [violate law]. condition (upholding probation allowing Kern, People v. 264 Cal.App.2d 71 enforcement, suspicion, law on reasonable Cal.Rptr. (Ct.App.1968); 105 accord Peo a probationer to search without a war Bravo, 600, ple v. Cal.Rptr. 43 Cal.3d 238 rant); Malone, 1234, State v. 403 So.2d 282, 336, (1987); 738 Himmage P.2d 342 v. (La.1981) (holding pro 1239 a warrantless State, 296, 763, 88 Nev. 496 P.2d 765 only supported by bation search need be (1972); Benton, 316, State v. 82 Ohio St.3d Burke, suspicion); reasonable State v. 235 757, (1998); 695 N.E.2d see also 165, 254, (1988) (hold Mont. 766 P.2d 257 Hale, 649, 692 N.Y.S.2d 714 N.E.2d at 865 ing permissible a warrantless search of a (“[0]ne way encourage probationer [the probationer supported by reasonable Hale, comply cause); was to hold out the law] 93 People N.Y.2d 692 possibility on, that he up N.Y.S.2d 714 would be checked N.E.2d (1999) and (upholding betrayed search of a stood to be incarcerated if he probationer’s home under a court-ordered probation con the terms of his negotiated probationary dition); Schlosser, status.”). course, probationer Of who is (N.D.1972) (upholding a warrant- likely more to abide the law is also less probationer); less search of a State v. Tur likely to harm others. See Owens v. Kel ner, (Tenn.2009) (up S.W.3d (11th Cir.1982) ley, 681 F.2d holding under the Tennessee Constitution (recognizing probationary that searches warrantless, suspicionless search of a protect society “by the deterrent effect of Winterstein, parolee); State condition”). agree Consent-to-search Wash.2d 220 P.3d ability ments also of law “enhanc[e] (holding probation officers must have any enforcement officers to detect unlaw probable cause before performing a war- ful ... activities.” Id. a defendant “[I]f search). rantless Though of diverse rea considers the of probation conditions too soning, these cases set forth principle harsh, right he has the probation to refuse probationers that parolees and may be Gawron, undergo and the sentence.” upon searched a different set of circum Despite P.2d at 1297. these obvious bene stances than law-abiding citizens. I would fits, fails even to discuss these decide this according case well- those widely agreements used consent-to-search principles. established part analysis as its this case and Consent-to-search provisions proba- blindly in follows Fourth Amendment agreements tion advance the in precedent interests of found Cullison. considering without set forth Cullison the above consider- all of

Based on ations, changing analysis of Short of Fourth Amend- hold the search I would jurisprudence under permissible jurisprudence, was ment and his residence and Amendment, authority. but also Such only the Fourth found in other nationwide I, of the Iowa section 8 past, under article to the based on an under- adherence a conclusion is consis- Such States Su- lying Constitution. belief the national precedents with our tent and diluted the preme Court has eroded diligent investigation, After a consensus. ordinary protec- rights of citizens be- probable cause to deputies Amendment, established tions under the Fourth was burglary evidence of the suffice, lieve only a warrant will unsound Short apartment, where Leya Lorenzen’s illogical. The search this case was was knowing Even Short residing. constitutionally permissible under article subject to the consent- probation 8 of our Iowa and our section Constitution probation of his provision to-search precedents. still law enforcement officers

agreement, I would affirm. cause for the search probable established the narrow search for evi- and executed WATERMAN, J., joins this dissent so, they Upon doing discovered dence. MANSFIELD, J., joins this part, and they sought. Even without the evidence dissent. warrant, by the provided the consent with the agreement, combined probation nar- probable cause and the

existence search, re- adequately scope

row officer discretion.

strained majority blindly elects to adhere to as requirement

an absolute search warrant notes this time Supreme up- period ("[T]he the United States Court Congress commonly act of Fugitive Slave Law from constitu- held fugitive fully ... called the slave law is au- tional attack.” I do not follow where the thorized the Constitution of the United heading point with this because States.”). Ells would not have known what up- States Court did not United going States United years Fugitive Law until two hold the Slave years spoke. to do two after he Booth, Elis's statement. See Ableman v. after particularly describing place Packet Coger v. Northwestern Union (1873). Co., searched, This court did not persons 37 Iowa 145 things be however, by Coger, disre- decide Clark to be seized. contemporaneous interpre- federal garding Const, U.S. amend. IV. provisions of the counterpart tations Now article section 8: Clark, States Constitution. right people to be secure in of the 1857 Iowa provision held a court “ houses, persons, papers their and ef- ‘for the education providing Constitution fects, through against unreasonable seizures and youths of all State ” violated; required schools’ system of common searches shall not be and no integrate its schools. probable local school board warrant shall but on issue Const, (quoting cause, affirmation, 24 Iowa at 271 art. supported by oath or added)). IX, (emphasis § 12 div. particularly describing place to be

Case Details

Case Name: State of Iowa v. Justin Dean Short

Court Name: Supreme Court of Iowa

Date Published: Jul 18, 2014

Citation: 851 N.W.2d 474

Docket Number: 12–1150

Court Abbreviation: Iowa