STATE оf Iowa, Appellant, v. Robert Dale LOWE, Jr., Appellee.
No. 10-1454.
Supreme Court of Iowa.
Jan. 20, 2012.
Rehearing Denied March 15, 2012.
554
VI. Disposition.
Cunningham committed numerous ethical violations involving neglect of client matters, misrepresentation, and conduct prejudicial to the administration of justice. These violations caused significant harm to his clients. He has not responded to the Board‘s complaints. We therefore suspend Cunningham‘s license to practice law with no possibility of reinstatement for eighteen months. This suspension shall apply to all facets of the practice of law as provided in
LICENSE SUSPENDED.
Nicholas A. Sarcone and Dean A. Stowers of Stowers Law Firm, West Des Moines, for appellee.
ZAGER, Justice.
The State appeals an adverse ruling on a motion which suppressed statements made by the defendant, Robert Lowe, as having been made in response to a promise of leniency, thereby rendering them involuntary. Lowe cross-appeals, claiming the district court erred in overruling his motion to suppress his statements as a violation of Miranda and, more specifically, as a violation of the ban on questioning a defendant after that defendant has invoked his right to counsel. Lowe further claims the district court erred in not suppressing all evidence found at the scene because the consent that led to the search of the premises was only obtained by prior police illegality. Lowe also claims that the consent to search provided by Cody Audsley was not voluntary and that he—Lowe—was re-
I. Background Facts and Proceedings.
At 10:00 p.m. on April 6, 2010, dispatch informed Detective Corey Schneden of the Ankeny Police Department that a female (Cindy) was being treated in the emergency room of a local hospital for a drug overdose. Schneden was advised the female likely ingested the drugs at Cody Audsley‘s residence, a mobile home in Ankeny. Schneden went to Audsley‘s residence for the purpose of interviewing her. He was accompanied by Officers Webb and Ripperger, both of whom were in uniform. Schneden was not in uniform, but was wearing a police department T-shirt, as well as a badge and gun.
Upon arrival, Schneden approached the main entrance on the south side of the mobile home. Ripperger was directly behind Schneden, and Webb was on a gravel drive east of and adjacent to Audsley‘s mobile home. Webb wеnt to the east side of the mobile home to prevent anyone from fleeing when Schneden knocked on the door. Webb was standing on a gravel driveway between Audsley‘s mobile home and another mobile home and was about a foot away from a window with a partially open blind which was broken or bent. When Schneden knocked on the door, Webb observed Audsley retrieve something from the kitchen table and place it in a kitchen cabinet. Webb also observed Lowe run towards the back of the residence and out of view. At this point, Webb went to the yard on the north side of residence to determine whether Lowe had fled.
After Schneden knocked on the door, he identified himself as a police officer. Schneden asked for, and received, Audsley‘s permission to enter the residence. As he entered, he introduced Ripperger and asked if they could ask Audsley a few questions. Audsley agreed. At this point, Webb was advised that both residents were now in the living area, so Webb joined Schneden and Ripperger in the residence. Audsley never gave Webb explicit permission to enter, but never asked him to leave. At no point did Audsley ask the officers to leave.
After entering, the police encountered Lowe and asked him to identify himself. Lowe produced identification and stated he lived with his mother elsewhere in Ankeny. He specifically denied that he lived at Audsley‘s residence. However, Lowe also stated that he was staying at Audsley‘s and that he was a guest. Later on in the evening, Lowe was allowed to change from gym shorts into sweatpants. Officers later found male clothing in a bedroom of the mobile home.
In response to questioning, Audsley denied using drugs with Cindy that day. During this initial questioning, Audsley was repeatedly reminded of the very serious medical condition Cindy was facing and was also confronted with Webb‘s observation of Audsley grabbing something from the table and placing it in the kitchen cabinet. During this time, officers asked her at least three times for consent to search the residence. While she did not expressly deny consent the first two times,
While Schneden and Lowe were outside, Ripperger and Webb continued their questioning of Audsley. Webb told Audsley that the officers needed to know what Cindy had taken and that Cindy‘s life might be in danger if Audsley did not tell them what she knew. Audsley then responded, “We smoked weed together. Do you want it?” At that point, Ripperger asked Audsley where the marijuana was, and Audsley pointed to a Del Monte fruit can on the coffee table. Around this time, Schneden and Lowe reentered the residence, and Ripperger told Schneden that Audsley admitted smoking marijuana earlier in the day with Cindy and that there was marijuana hidden in the fruit can on the table. With Audsley‘s permission, Webb picked the fruit can up. He then asked Audsley for consent to open it, which he received. After unscrewing a false bottom on the can, Webb found a pipe and marijuana. Once the marijuana was discovered, Audsley and Lowe were not free to leave. Audsley then refused to consent to a search of the rest of the residence.
Around midnight on April 6, 2010, Schneden contacted Detective Matthew Jenkins, a member of the Ankeny Police Department assigned to the Mid-Iowa Narcotics Task Force, to assist in obtaining a search warrant for Audsley‘s mobile home. The probable cause for the search warrant was the discovery of the marijuana and drug paraphernalia.1 The police did not begin searching the residence until 3:00 a.m. when Jenkins arrived with the search warrant. At that time, Lowe and Audsley were inside the residence and neither was in handcuffs. Jenkins provided each of them with the Miranda warning. While Audsley agreed to speak with Jenkins, Lowe immediately requested to speak with counsel. Lowe was then placed in a squаd car. Audsley remained in the mobile home during the search.
Sometime during the search, Schneden entered the bathroom area and found what he believed to be components of a meth lab. This was not an active meth lab, and none of the officers reported smelling any odors associated with methamphetamine production. After being advised of this discovery, Jenkins became concerned for the safety of his officers and the neighbors. He spoke to Audsley, who confirmed that Lowe had been involved in manufacturing methamphetamine in the past, but it was not to be made in the residence. Officers were told to suspend their search until Jenkins could speak to Lowe about whether there was anything dangerous in the residence.
Jenkins then went back to the squad car, opened the door, and reiterated to Lowe that he did not have to speak with him, that he was “not asking to get you [Lowe] in trouble,” but that he did not want to find any anhydrous. Lowe confirmed that there was nothing active going
On May 4, 2010, Lowe and Audsley were charged with conspiracy to manufacture a controlled substance, manufacturing a controlled substance, possession of anhydrous ammonia with intent to manufacture a controlled substance, and possession of lithium with intent to manufacture a controlled substance. Lowe moved to suppress his statements to police, alleging the statements were elicited in violation of his rights under the
Lowe filed another motion to suppress on June 17, alleging the search warrant for Audsley‘s mobile home was based on information obtained by a prior illegal search in violation of the
On July 7, Lowe filed a renewed motion to suppress his statements and asked the court to reopen the record based on newly received recordings of his conversation with Jenkins. This motion additionally argued the statements should be suppressed as a promise of leniency under State v. McCoy, 692 N.W.2d 6 (Iowa 2005). Lowe argued his delay in asserting his claim of promissory leniency was based on the State‘s failure to deliver the audio recordings of his exchange with Jenkins in a timely fashion.
In its resistance to the motion, the State argued the statements were not barred as a Miranda violation based on the public safety exception. The State also argued Lowe‘s July 7 motion was untimely because it was not brought within forty days of arraignment, as required under
The State sought discretionary review of the ruling on the supрression of Lowe‘s statements, and Lowe filed a cross-applica-
II. Standard of Review.
Lowe claims that the search was conducted without Audsley‘s valid consent, that the search was conducted without his consent, and that these actions violate the state and federal constitutions. Lowe also claims the police reinitiated questioning of him after he invoked his right to counsel. Our review of constitutional issues is de novo. State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007); see also State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010) (holding we review de novo a district court‘s decision to admit statements allegedly obtained in violation of the accused‘s constitutional rights). This review requires us to make an independent evaluation of the totality of the circumstances as shown by the entire record, including the evidence presented at the suppression hearings. Id. Because of the district court‘s opportunity to evaluate the credibility of witnesses, we will give deference to the factual findings of the district court, but we are not bound by them. Id.
Lowe argues the evidence against him should be suppressed under both the state and federal constitutions. However, “we generally decline to consider an independent state constitutional standard based upon a mere citation to the applicable state constitutional provision.” State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially concurring).2
III. The Physical Evidence Obtained in the Home and Shed.
Lowe claims that the physical evidence found in Audsley‘s mobile home—the marijuana, pipe, and the precursor substances—must be suppressed because the evidence was obtained in violation of the
Lowe also points to Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), and claims that under Randolph, the police were required to obtain his consent in order to use the evidence against him. Because they did not obtain his consent, Lowe argues that the marijuana and any evidence recovered pursuant to the search warrant predicated on the discovery of the marijuana cannot be used against him.
Lowe claims that Audsley‘s consent was invalid. The Supreme Court has stated that “Fourth Amendment rights are personal rights which may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425, 58
We employ a two-step approach to determine whether there has been a violation of the
The determination of whether a person has a legitimate expectation of privacy with respect to a certain area is made on a case-by-case basis, considering the unique facts of each particular situation. The expectation must also be one that society considers reasonable. Id. (citations and intеrnal quotation marks omitted). Therefore, as a preliminary matter, we must determine whether Lowe had a reasonable expectation of privacy in Audsley‘s mobile home. An expectation of privacy must be subjectively and objectively legitimate and will be determined “on a case-by-case basis.” Naujoks, 637 N.W.2d at 106. An overnight guest has a legitimate expectation of privacy in his host‘s home. Id. Leaving possessions in another‘s residence and making frequent visits are also factors that favor a legitimate expectation of privacy. State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004).
Although Lowe denied living at Audsley‘s residence when the officers first entered, it appeared to the officers that Lowe was a guest of Audsley‘s. Lowe had clothes and other items of a personal nature in Audsley‘s mobile home. Additionally, according to the minutes of testimony, Lowe had been staying there for about six months. Based on these unique subjective and objective facts, we conclude Lowe had a legitimate expectation of privacy in Audsley‘s mobile home.
Since Lowe has shown a legitimate expectation of privacy in Audsley‘s mobile home, we must move to step two of the analysis in which we must decide
The officers did not have a warrant when they first approached Audsley‘s residence, but they received Audsley‘s consent to enter the mobile home and ultimately to search the fruit can. Lowe claims that Audsley‘s consent was the exploitation of prior police illegality, making it “fruit of the poisonous tree.” See Lane, 726 N.W.2d at 383. Lowe also claims Audsley‘s consent was not voluntary. If either of these claims is accurate, then Audsley did not validly consent to the search of the fruit can. The State has not provided any basis other than Audsley‘s consent to justify the search. If Audsley‘s consent was involuntarily obtained, then the police would have unreasonably searched her residence which, as stated above, is an area where Lowe had a legitimate expectation of privacy. We now turn to Lowe‘s challenges to Audsley‘s consent.
A. Was Audsley‘s Consent to Search the Result of Prior Police Illegality?
Around 11:00 p.m., Webb received consent to search what appeared to be a can of Del Monte fruit cocktail that was sitting in Audsley‘s living room. The fruit can contained a false bottom which held marijuana and a pipe. The State asserts Audsley voluntarily consented to the search. Lowe does not dispute that Audsley told the officers they could search the fruit can. Lowe asserts that Audsley‘s consent was only produced by exploiting prior police illegality, that her consent was not voluntary, and that even if it were, the evidence is still inadmissible against Lowe because he did not consent to the search.
Lowe points to two actions he claims constitute illegal searches and seizures prior to the consensual search of the fruit can. First, he claims the police searched the mobile home illegally when Webb looked in the windows prior to the officers knocking at the door. Second, he claims the police seized Audsley and him without reasonable suspicion prior to the discovery of the marijuana when they exceeded the scope of Audsley‘s consent to a knock and talk and “took over” the mobile home.
1. The activities of the police prior to entering the mobile home.
We turn first to Lowe‘s contention that Webb searched the mobile home by looking in the windows. A person in his dwelling with the window coverings almost closed certainly has some expectation of privacy. State v. Davis, 228 N.W.2d 67, 72 (Iowa 1975), overruled on other grounds by State v. Hanes, 790 N.W.2d 545, 550 & n. 1 (Iowa 2010). However, a search only occurs if there is a violation of an expectation of privacy “that society considers reasonable.” State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998). Regarding driveways, we have noted that “[i]t is common for solicitors, operators of motor vehicles, and other individuals to enter unsecured driveways of private residences.” State v. Lewis, 675 N.W.2d 516, 523 (Iowa 2004). Therefore, a defendant “could not have had a reasonable expectation of privaсy in his driveway” and the
Webb looked through Audsley‘s windows while he was standing on the driveway of her mobile home. We have distinguished between merely looking into
In applying these legal principles to the facts of this case, we must analyze the significance of Webb‘s location when he observed Audsley place something in the kitchen cabinet and saw Lowe run to the back of the mobile home. Lowe claims that this observation constituted an illegal search and that it was later exploited to gain Audsley‘s consent. Webb testified that he was outside the east window of the mobile home when he saw Audsley put something in the cabinet, that he was standing on the gravel drive on the east side of the house when this occurred, and that the blind was partially open so that he could readily see into the residence. As Audsley was placing something in the cabinet, Webb observed Lowe run to the back of the residence. It was only at that point that Webb entered the backyard. We need not determine whether entering the backyard was an invasion of a legitimate expectation of privacy because Webb did not confront Audsley or Lowe with any observations he made from that vantage point. Lowe‘s claim is that confronting Audsley with the fact that Webb had seen her put something in the cabinet was an exploitation of prior police illegality. We disagree. When Webb observed Audsley in the kitchen, he was standing on the gravel driveway on the east side of the mobile home. This was a public vantage point where the officer had a right to be, and an observation made with the naked eye from that point is not a search. Lewis, 675 N.W.2d at 523. Since these observations were not illegal searches, confronting Audsley with them could not be the exploitation of a prior illegal search.
2. The officers’ alleged seizure of Lowe and Audsley after entering the mobile home.
Lowe contends that the police detained both Audsley and him without reasonable suspicion and in violation of his
“Whether a ‘seizure’ occurred is determined by the totality of the circumstances.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008). “The Supreme Court has long recognized that not all police contacts with individuals are deemed seizures within the meaning of the Fourth Amendment.” State v. Smith, 683 N.W.2d 542, 546 (Iowa 2004) (citation and internal quotation marks omitted). Encounters with the police remain consensual “[s]o long as a reasonable person would feel free to disregard the police and go about his business.” Id. at 547 (citation and internal quotation marks omitted). Generally, police questioning, and the responses it elicits, does not constitute a seizure. Wilkes, 756 N.W.2d at 843; State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004).
For a seizure to occur, there must be “objective indices of police coercion.” Wilkes, 756 N.W.2d at 843. The fact that an officer shows a badge, is “visibly armed,” or is in uniform has been given little weight in the analysis. See id. at 843. In order to maintain the consensual nature of the encounter, there should be “no show of authority, no intimidation, and no use of physical force by the officers in their encounter.” Reinders, 690 N.W.2d at 83. Other signs of a seizure would be “evidence the [officer] used a commanding or threatening tone, displayed a weapon, or touched [the suspect].” Smith, 683 N.W.2d at 547. In sum, we must determine whether the officers impaired Audsley‘s ability to control her own residence or whether the “officers simply engaged [her] in conversation.” Reinders, 690 N.W.2d at 83.
When the officers arrived at Audsley‘s residence, Schneden identified himself as a police officer and asked for permission to enter in order to question Audsley regarding a woman who had overdosed on drugs. Audsley specifically consented to Schneden and Ripperger‘s entry, and she never objected to Webb entering immediately thereafter. Audsley implicitly consented to Webb‘s entry. Audsley refused to consent to a search of her entire residence, but never asked the officers to leave. The only instruction Audsley ever gave the officers—that they did not have permission to search her entire residence—was followed.
Schneden characterized his interaction with Lowe and Audsley as “conducting an interview.” During the course of that interview, Schneden took down Audsley‘s information, recorded Lowe‘s information from his identification card, and asked for both of their phone numbers, which they provided without objection. During the course of the interview, Audsley willingly shared her interactions with Cindy during the day. Schneden then asked questions about her relationship with Cindy. He also informed Audsley that Cindy stated that she had consumed something she had gotten from Audsley earlier that day. Audsley denied that she had given Cindy
At that point, Lowe was asked to go outside with Schneden to answer a few questions about his interactions with Cindy. While Lowe and Schneden were outside, Webb and Ripperger continued to question Audsley. Audsley denied putting anything in the cabinet, and Webb asked why she was lying to him. Webb or Ripperger told Audsley, “The thing is, I don‘t give a shit about arresting you; I don‘t give a shit about charging you,” but that the doctors needed to know what Cindy took or “she may die from it.” One of the officers reminded Audsley that Cindy indicated she got something from Audsley earlier that day. At that point, Audsley stated, “We smoked weed together. Do you want it?” Lowe and Schneden then reentered the mobile home. At this point, Audsley gave Webb permission to pick up and open the fruit can containing the marijuana and drug paraphernalia. Schneden asked if the substance was only marijuana, and Audsley confirmed that it was. Audsley then refused to consent to a search of her entire residence. Webb and Schneden continued to try to find out if Audsley knew what else Cindy had taken, in addition to smoking marijuana, and Webb emphasized the danger that Cindy was in. However, these questions occurred after Audsley consented to the search of the fruit can, and therefоre, they would not impact the validity of the consent that Audsley had already given.
During this encounter, all three officers were armed and had badges, and two were in uniform. The officers never drew their weapons or touched Audsley, and they did not threaten her with arrest. The officers questioned Audsley regarding the overdose, and repeatedly reminded her that if she were not forthcoming with any information she had, it could lead to further health problems for Cindy. There is no evidence in the record that this claim was false. While the officers may have raised their voices, they did not use threats, intimidation, or physical force in such a way that would have impaired Audsley‘s ability to control her own residence. There were no “commands” to Audsley that she was required to tell the officers what they wanted to know, only requests for information. There were no commands to Lowe that would give Audsley the impression she had been seized. Schneden asked Lowe to step outside with him, and Lowe willingly did so. There is no evidence either Lowe or Audsley expressed any objection to Schneden‘s request to talk to Lowe outside Audsley‘s presence.5
After reviewing the totality of the circumstances, we determine that Audsley was not “seized” or detained in violation of the
B. Was Audsley‘s Consent to Search Voluntary?
A warrantless search conducted by free and voluntary consent does not violate the
The question of voluntariness requires the consideration of many factors, although no one factor itself may be determinative. See generally 4 LaFave, § 8.2, at 50-141 (discussing several factors bearing upon the validity of consent). In determining whether consent is voluntary, courts examine the totality of the circumstances, including relevant factors such as: “(1) the individual‘s age and mental ability; (2) whether the individual was intoxicated or under the influence of drugs; (3) whether the individual was informed of [her] Miranda rights; and (4) whether the individual was aware, through prior experience, of the protections that the legal system provides for suspected criminals. It is also important to consider the environment in
There are several additional factors this court can consider when determining whether consent is valid. “[L]imitations on the nature of the crime under investigation and the objects sought by the search” can minimize the seriousness of possessing drugs for personal usе and may subtly create a belief that there will be no consequences if the occupants consent to a search. Reinier, 628 N.W.2d at 469. “These comments by police constitute a subtle form of deception with no reasonable basis.” Id. However, a suspect acknowledging there are drugs in the house—thereby giving the officer probable cause to obtain a search warrant—supports the contention that consent was voluntarily obtained. Id.; see also 4 LaFave § 8.2(g), at 100. The court can also consider “knowledge by the defendant of the right to refuse to consent . . . [and] whether police asserted any claim of authority to search prior to obtaining consent.” Reinier, 628 N.W.2d at 465 (citations omitted).7
Audsley‘s consent was obtained after a “knock and talk” encounter with the officers. The “knock and talk” procedure generally involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal matter, and eventually requesting permission to search the house. If successful, it allows police officers who lack probable cause to gain access to a house and conduct a search. The “knock and talk” procedure has generally been upheld as a consensual encounter and a valid means to request consent to search a house. Reinier, 628 N.W.2d at 466 (citations omitted). The State carries the burden of proving there was valid consent both to enter the home and to conduct the search. Id. at 467. The consent of officers to enter the mobile home in this case is not reasonably in dispute.
Turning to our analysis of the relevant factors relating to Audsley‘s consent, Audsley voluntarily allowed multiple police officers into her home. She was twenty-eight years old, and there is nothing in the record to show that she suffered from any mental abnormality or was otherwise impaired by alcohol or drugs. The encounter with the police took place “on the familiar surroundings of the threshold of [Audsley‘s] home.” See State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011). Also, Audsley clearly knew she had the right to refuse consent to search because at all times she rеfused to consent to a search of her entire mobile home.
The questioning of Audsley was of a short duration, perhaps twenty minutes. There is no evidence of threats or physical intimidation. The record does not disclose that the officers made any misrepresentations regarding Cindy‘s medical condition in order to obtain Audsley‘s consent to search the fruit can.9 The police never claimed they could search without Audsley‘s consent. While officers did ask for consent several times before the limited consent was granted, this is just one of the factors which the court can rely on in determining whether the ultimate search was voluntary. See United States v. Cedano-Medina, 366 F.3d 682, 688 (8th Cir. 2004) (“[T]here is certainly no legal rule that asking more than once for permission to search renders a suspect‘s consent involuntary, particularly where the suspect‘s initial response is ambiguous.” (citation and internal quotation marks omitted)); see also 4 LaFave § 8.2(f), at 97-100. Although we acknowledge prior unreasonable searches can also be a factor in this analysis, we have already concluded there was no prior misconduct by the police.
There are also factors that weigh against the voluntariness of Audsley‘s consent. One of the officers told Audsley, “The thing is, I don‘t give a shit about arresting you; I don‘t give a shit about charging you,” and that the doctors needed to know what Cindy took or “she might die from it.” These statements are troubling. In Reinier, we noted:
The officers told Reinier prior to obtaining her consent that they were not looking for small quantities of drugs but “meth labs” and “major dealers.” These comments bear upon the voluntariness of the consent because they are limitations on the nature of the crime under investigation and the objects sought by
the search. The comments also tend to minimize the seriousness of possessing drugs for personal use or casual sales, and subtly create a false belief that no adverse consequences will result from a search if there is no meth lab in the house and the occupants are not major dealers. These comments by police constitute a subtle form of deception with no reasonable basis.
Reinier, 628 N.W.2d at 469 (citations omitted). Unlike in Reinier, the officer made it clear that he was looking for small amounts of drugs that would be used for personal use or casual sales. In that respect, he did not “subtly create a false belief that no adverse consequences will result from a search if there is no meth lab in the house and the occupants are not major dealers.” Id. He did, however, tell Audsley that he was not interested in charging her. The officers indicated early on that they were interested in searching the entire premises in order to determine what drugs Cindy might have taken. This officer‘s comment, much like the officer‘s comment in Reinier, “tend[ed] to minimize the seriousness of possessing drugs for personal use or casual sales.” Id. As such, it was a “subtle form of deception.” Id. However, the subtle use of dеception to gain consent to search is only one factor among many when evaluating the totality of the circumstances to determine whether consent is voluntary. Id. We will therefore consider Webb‘s statement as one of many factors in our analysis.10
While presenting a close case, in our review of the totality of the circumstances, we conclude that Audsley‘s consent to search the can of fruit was voluntary.11
We now turn to the issue of whether Audsley‘s consent to search the fruit can is binding on Lowe.
C. The Impact of Audsley‘s Consent on Lowe.
We have long held that a guest without exclusive possession of an area assumes the risk that his host will allow others into the common areas. State v. Knutson, 234 N.W.2d 105, 107 (Iowa 1975). Additionally, a cohabitant assumes the risk that other cohabitants will consent to searches of shared living areas. Id. (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). If a person with authority grants consent to search shared areas, that authority is binding as to all other people who share the area. State v. Bakker, 262 N.W.2d 538, 546 (Iowa 1978).
Authority to consent includes not only actual, but also apparent, authority. Illinois v. Rodriguez, 497 U.S. 177, 185-87 (1990). Apparent authority will validate a search where officials “enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry” had the authority to do so. Id. at 186. We apply an objective standard when analyzing consent and ask “would the facts available to the officer at the moment ... warrant a [person] of reasonable caution in the belief that the consenting party had authority over the premises?” Id. at 188 (citations and internal quotation marks omitted) (alteration in original).
The United States Supreme Court has recently announced a narrow exception to the rule that a cotenant‘s consent is binding on other cotenants. Under the
Audsley owned the mobile home where police initially obtained her consent to enter. Additionally, the fruit can with the marijuana was found in the common area of the mobile home sitting out on the table. Not surprisingly, Lowe has not claimed that he was the exclusive owner of the fruit can. Since the fruit can was located in the living room of her home, Audsley had the actual and apparent authority to consent to a search of it. There is no claim that any part of the mobile home was exclusively Lowe‘s. Therefore, any areas of the mobile home where Lowe could claim an expectation of privacy would be shared areas, and he would have to expect Audsley could consent to searches of those areas. Cf. Fleming, 790 N.W.2d at 565-67. Most importantly, despite being present in the mobile home for all but a few minutes, Lowe never objected
Lowe asks for a more expansive definition of “physically present” in the Randolph analysis under the
Lowe also asks this court to declare that
Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, with-out more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.
Id. at 114. The Supreme Court clearly noted it would only “afford[] dispositive weight to the fellow occupant‘s contrary indication when he expresses it.” Id. at 121-22. The reason for requiring a cotenant to actually voice his objection was that an alternative rule “requir[ing] the police to take affirmative steps to find a potentially objecting cotenant before acting on the permission they had already received” would “needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field.” Id. Lowe has not provided us with any reason to interpret the
Nothing in this record would support the conclusion that Lowe was removed from the premises to prevent him from objecting to the search. Audsley had the authority to consent to the entry by police and the limited search of the fruit can on the coffee table. Lowe was physically present at the time, but did not object to the entry by police or the search of the fruit can. Because Lowe did not object, Audsley‘s consent to search is valid as to Lowe, and allowing the evidence fоund to be used against him does not violate Lowe‘s rights under either the federal or state constitutions.
D. Conclusion.
Audsley validly consented to a search of a common area in the mobile home she owned. The record evidence in this case does not support the conclusion Lowe was removed by the police to prevent his objection to the search. Lowe never objected to the search even though he was physically present when the
Lowe also attempts to attack the search warrant that led to the discovery of the other physical evidence the State seeks to use against him. This is based on the claim that the marijuana which formed the probable cause for the search warrant was the product of illegal police action or involuntary consent. The parties agree, and the district court found, that the marijuana found as a result of that search did in fact supply the probable cause that supported the warrant application. Since the consent that led to the discovery of the marijuana was not based on any prior illegal police action, and Audsley‘s consent was voluntary, any attack on the search warrant is without merit. The warrant was properly obtained, and therefore the physical evidence seized as a result of that warrant is admissible against Lowe.
IV. Lowe‘s Statements to Jenkins Following Lowe‘s Request for an Attorney.
Upon his arrival with the search warrant, Jenkins read Audsley and Lowe their Miranda warnings. Lowe immediately requested an attorney, and he was placed in a squad car while the search of the residence continued. Once officers discovered what they believed to be components of a meth lab in the bathroom, Jenkins approached Lowe and asked if there was any anhydrous ammonia or other dangerous substances on the property. In response to the State‘s arguments on discretionary review regarding the promise of leniency issuе, Lowe contends this reinitiation of questioning violated his
After receiving the Miranda warnings, a suspect may waive his rights and respond to interrogation, or a suspect can request counsel. Edwards v. Arizona, 451 U.S. 477, 484 (1981). “Under the Federal Constitution, the authorities must follow different procedural safeguards to re-interrogate a suspect depending on whether the suspect has invoked his or her right to remain silent or the right to the presence of counsel.” Palmer, 791 N.W.2d at 848. In Edwards, the Court established a clear, bright-line rule: If the suspect requests counsel, all interrogation must cease until the detainee is provided with an attorney or “the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85; see also Palmer, 791 N.W.2d at 848 (“[T]he Court in Edwards adopted a per se ban on any further questioning of a suspect without the presence of counsel, for an indefinite duration, after the suspect invokes the right to counsel.“). The Court reasoned that invoking the right to counsel is a “significant event” and once an accused has requested an attorney, he has an “‘undisputed right’ under Miranda to remain silent and to be free of interrogation.” Edwards, 451 U.S. at 485 (citation omitted).
The State does not dispute that Lowe requested an attorney. Instead, the State seeks to extend the “public safety exception” to the Miranda requirements to situations like the one here, where the accused has requested an attorney and the police subsequently reinitiate questioning. We have not previously decided whether the public safety exception applies after the Miranda protections have been invoked.
The public safety exception to the Miranda warnings was first announced in New York v. Quarles, 467 U.S. 649 (1984), and has since been adopted in Iowa. See State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994). Under the public safety exception, when “police officers ask questions reasonably prompted by a conсern for the public safety,” without first giving suspects Miranda warnings, the responses those questions elicit do not violate Miranda. Quarles, 467 U.S. at 656. The justification given for the rule is straightforward: “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the
We have noted that the public safety exception is closely drawn and narrow in scope. In re J.D.F., 553 N.W.2d 585, 588 (Iowa 1996); see also Quarles, 467 U.S. at 658. For the exception to apply, there must be a threat to public safety and an “immediate necessity” for the information the officer seeks to obtain by questioning a suspect in violation of Miranda. Quarles, 467 U.S. at 657. The exception will only apply in situations where there is “sufficient exigency to justify the questioning.” In re J.D.F., 553 N.W.2d at 588. A missing gun in a field creates “sufficient exigency” to justify pre-Miranda questioning. Id. at 587-88. The exception also applies to the discovery of an active methamphetamine lab. State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006).
In Simmons, officers could smell anhydrous ammonia from outside the door of an apartment. Id. at 269. After requesting permission to enter the apartment and receiving no response, officers forced the door open. Id. Once the door was open, the smell of anhydrous ammonia was strong enough to make one officer‘s eyes water. Id. Without reciting Miranda warnings, the officers asked the defendant whether there was an active meth lab in the apartment, and the defendant said there was. Id. at 269-70. The officers then evacuated the residents of the apart
[the officer‘s] inquiries as to the presence and status of a methamphetamine lab were for the purpose of obtaining information that would help him safely address the potentially volatile and dangerous situation confronting the officers at the scene, and not solely to obtain incriminating information from [the defendant].
Id. at 275. Particularly, we noted the strong odor of anhydrous ammonia in the apartment. Id. The odor itself posed a safety risk to the officers and the neighbors, and that risk justified the officers’ failure to recite the Miranda warnings prior to questioning the defendant about the presence and nature of a meth lab. Id. These circumstances demonstrated sufficient exigency for the public safety exception to apply.
In this case, the officers had been in Audsley‘s mobile home for nearly five hours before officers found inactive components of a meth lab and Jenkins reinitiated questioning of Lowe. During that time, the officers did not report any odor of anhydrous ammonia or ether, nor did they report any physical effects such as watering eyes. Jenkins only reinitiated questioning after components of a meth lab were discovered, but he did not order the other officers out of the mobile home or evacuate the surrounding residences. Jenkins testified that there was material in one of the bedrooms that smelled of anhydrous ammonia, but this material had not been located at the time Jenkins reinitiated questioning. Jenkins also testified Lowe told him that he was not actively manufacturing methamphetamine in the mobile home at the time of the search. Audsley confirmed that Lowe had manufactured methamphetamine in the past, but she had told him he could not do it in the house. The only basis for the reinitiation of interrogation was the discovery of the inactive components of a meth lab in the bathroom.
The discovery of inactive components of a meth lab does not provide sufficient exigency to justify a public safety exception to the requirements of Miranda and its progeny. Unlike the officers in Simmons, where the exception was applicable, Jenkins was not confronted with an active methamphetamine lab. None of the officers in Audsley‘s mobile home reported any odors of anhydrous ammonia or ether. There wаs no evidence that the active “cooking” of meth was taking place. Additionally, Jenkins did not feel the threat was severe enough to evacuate Audsley and his fellow officers, or to warn nearby residents and remove them from the potentially dangerous area. Under these facts, we cannot conclude there was sufficient exigency for the public safety exception to apply.
Once a suspect requests an attorney, all interrogation must cease. Edwards, 451 U.S. at 484-85; see also Palmer, 791 N.W.2d at 847-48. Jenkins reinitiated questioning prior to Lowe speaking with an attorney. Because the State has not shown sufficient exigency to invoke the public safety exception, the statements made by Lowe after he requested counsel were taken in violation of Miranda and Edwards. Because there was insufficient exigency to invoke the public safety exception in this case, we need not determine whether the public safety exception could ever apply in a situation where the suspect had already requested an attorney. Under the facts and circumstances of this case, and based upon our prior precedent, we hold that there is insufficient exigency to justify the officer‘s
V. Disposition.
The police did not violate Lowe‘s federal or state constitutional rights when they searched the fruit can on the coffee table in Audsley‘s living room. Audsley‘s consent was not the result of prior illegal police action and therefore the evidence is not “fruit of the poisonous tree,” nor was her consent involuntary under the totality of the circumstances that existed in this case. Additionally, despite being physically present, Lowe never objected to the entry of the police or the search of the fruit can. As such, the trial court was correct in denying the motion to suppress the physical evidence obtained pursuant to the consent and the search warrant. Also, when the police reinitiated questioning of Lowe aftеr he requested an attorney, they violated his constitutional rights under Miranda. Accordingly, those statements were properly suppressed. On discretionary review from the district court‘s ruling granting the motion to suppress the statements, the ruling on the motion to suppress is affirmed. On cross-application for discretionary review, the district court‘s ruling denying the motion to suppress the physical evidence obtained based on the alleged violation of the United States and Iowa Constitutions is affirmed.
DECISION OF THE DISTRICT COURT AFFIRMED ON APPEAL; DECISION OF THE DISTRICT COURT AFFIRMED ON CROSS-APPEAL AND CASE REMANDED.
CADY, C.J., concurs; APPEL, WIGGINS, and HECHT, JJ., concur in part and dissent in part; and WATERMAN and MANSFIELD, JJ., concur specially.
WATERMAN, Justice (concurring specially).
I concur in the result and in all aspects of the well-reasoned majority opinion, except for its blessing of the language in State v. Pals, 805 N.W.2d 767, 783 (Iowa 2011), characterizing traffic stops as an “inherently coercive” setting for determining whether a citizen‘s consent to the search of his vehicle is voluntary. Pals was wrongly decided for the reasons set forth in my dissenting opinion in that case. See Pals, 805 N.W.2d at 788 (Waterman, J., dissenting) (noting the “‘temporary and relatively nonthreatening detention involved in a traffic stop‘” (quoting Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1224, 175 L.Ed.2d 1045, 1058 (2010))). Today‘s majority correctly applies our precedent and Federal
I would like to respond to my dissenting colleagues. The dissent thinks it “indisputable” that Howard, Reinier, and Randolph, “collectively,” require invalidation of the consent search under article I, section 8 of the Iowa Constitution. This is surprising because none of those cases was decided under a separate analysis of Iowa constitutional law.13
Moreover, each of those cases is distinguishable. In State v. Howard, the officer told the defendant that “he was only interested in retrieving the [stolen] property and that if Howard turned it over to the
In short, I do not think Howard, Reinier, and Randolph can be fairly read, even “collectively,” to require invalidation of the initial search in this case. As in Pals, the problem here is not that the existing
The dissent then moves to its real point, which is that we should adopt a rule under the
Yet another problem with the dissent‘s approach is its disconnect from the present case. In the dissent‘s view, a consent to search is automatically “involuntary” unless the person was told he or she had a right to refuse the search. But in this case, Audsley unquestionably knew she had that right. She indicated to the police she would not consent to a search of her premises; those requests were consistently honored. She did at one point retrieve the fruit can, hand it to the police, and agree that they could open it; but there is no doubt on this record she knew she had the right not to do so. She then refused to consent to a broader search of the premises. If the search here is to be deemed
In any event, I would be very hesitant to throw aside decades of precedent and create another discrepancy between
They could if the consent requirement were adopted legislatively, rather than as a new-found interpretation of the
The dissent presents no persuasive reason to overturn our own precedеnt under both the
The overwhelming majority of state appellate courts analyzing consent search issues on independent state constitutional grounds follows the federal approach and rejects a requirement that police advise suspects they can decline requests for permission to search. See, e.g., State v. Flores, 144 N.M. 217, 185 P.3d 1067, 1071 (N.M.Ct.App.2008) (“Every other state court that has been asked to adopt the Ferrier rule as a matter of state constitutional law has rejected it.“) (collecting knock-and-talk cases); Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 432 (1999) (“Those states that have addressed this issue, however, have, for the most part, rejected the notion that knowledge of one‘s right to refuse consent to a warrant
The dissent fails to note that the leading case of its minority of four, State v. Ferrier, was expressly based on a unique state constitutional provision stating, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” 136 Wash.2d 103, 960 P.2d 927, 930 (1998) (quoting Wash. Const. art. I, § 7). As the Ferrier court confirmed, “This provision differs from the
Nevertheless, a sharply divided Arkansas Supreme Court relied on Ferrier in adopting a warning requirement under its state constitution in State v. Brown, 356 Ark. 460, 156 S.W.3d 722, 731 (2004). The dissenting opinion begins, “Today, a 4-3 divided court issues an opinion that makes a radical change in Arkansas search and seizure law. The decision is clearly contrary to prior law and the change is totally unwarranted and unnecessary.” Id. at 732 (Glaze, J., dissenting). Justice Glaze‘s observation would be equally true for Iowa if today‘s dissent had one more vote in this case.
My colleagues’ dissent cites “values underlying
Notwithstanding the dissent‘s references to “special protection of the home,” the dissent also implies that its requirement of a prior warning of a right to refuse should apply to vehicle searches. The dissent criticizes the reasoning in the Pals majority opinion that one of the dissenters wrote just three months ago. And logically speaking, there is no reason why the dissent‘s requirement of a prior warning should not apply to searches of the person. Or, for that matter, to noncustodial interrogations that yield confessions which in the dissent‘s new world would be inadmissible without prior warnings. I would not go there.
MANSFIELD, J., joins this special concurrence.
APPEL, Justice (concurring in part and dissenting in part).
I readily concur in the majority‘s discussion of exigent circumstances. I dissent, however, on the issue of consent to search.
Certainly we all recognize that the home is entitled to special protection under the
For instance, in Boyd v. United States, 116 U.S. 616, 630 (1886), abrogated on other grounds by Warden v. Hayden, 387 U.S. 294, 302 (1967), the Court emphasized that constitutional search and seizure principles apply
to all invasions on the part of the government and its employees of the sanctity of a man‘s home and the privacies of life. It is not the breaking of his dоors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property....
And then in Weeks v. United States, 232 U.S. 383, 393 (1914), overruled in part on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961), the court said:
If letters and private documents [could] ... be [unlawfully] seized [from a home without a warrant] and used in evidence against a citizen accused of an offense, the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and ... might as well be stricken from the Constitution.
Similarly, in Johnson v. United States, 333 U.S. 10, 13-14 (1948), the Supreme Court, in Justice Jackson‘s famous words, declared:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate‘s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people‘s homes secure only in the discretion of police officers.
While the current United States Supreme Court has dramatically scaled back
The sanctity of the home was an underpinning of this court‘s recent opinion in State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). In Ochoa, we stated, “The home plays a central role in a person‘s life, providing sanctuary, comfort, seclusion, security, and identity.” Ochoa, 792 N.W.2d at 289. We observed the Iowa framers
The need to guard against invasions of the home has been long recognized in the knock-and-talk context. Felix Frankfurter once wrote to Chief Justice Warren in connection with search and seizure law that “[t]o the extent that I am charged, not by you, with being ‘a nut’ on the subject of the ‘knock at the door,’ I am ready to plead guilty.” Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court—A Judicial Biography 266 (1983). Not surprisingly, there is considerable caselaw and academic commentary cautioning about use of the knock-and-talk procedure to evade the warrant requirement ordinarily required before police may search a home.
For example, in Hayes v. State, 794 N.E.2d 492, 497 (Ind.Ct.App.2003), the court noted, “While not per se unlawful, the knock and talk procedure ‘pushes the envelope’ and can easily be misused.” Similarly, in United States v. Johnson, 170 F.3d 708, 721 (7th Cir. 1999) (Evans, J., concurring), it was observed that “the seeds of this bad search were sown when the police decided to use the ‘knock and talk’ technique.” Justice Stevens, in his concurring opinion in Georgia v. Randolph, 547 U.S. 103, 124 (2006), suggested that there is a need for a tightened voluntariness standard in connection with knock and talks.
A number of courts have suggested police must have at least reasonable suspicion before a knock-and-talk procedure may be implemented. See, e.g., United States v. Jones, 239 F.3d 716, 720-21 (5th Cir. 2001); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991). Some commentators have suggested the requirement of reasonable suspicion does not go far enough. See, e.g., Craig M. Bradley, “Knock and Talk” and the Fourth Amendment, 84 Ind. L.J. 1099, 1117 (2009) [hereinafter Bradley]. Although the issue of reasonable suspicion is not an issue in this case, these authorities cited above demonstrate the sensitivity of courts in considering the invasion of privacy interests inherent in the knock-and-talk procedure.
Academics have cautioned that knock-and-talk methods may render the search warrant requirement nugatory. See, e.g., Bradley, 84 Ind. L.J. at 1099. These commentаtors often favor a requirement of a knowing and intentional waiver in order to promote the sanctity of the home and defend the ordinary requirements of probable cause and a judicial warrant before a home may be searched. Id. at 1127.
With this background, we now turn to the issue of consent in the present case. In State v. Pals, 805 N.W.2d 767 (Iowa 2011), this court determined that an automobile search was invalid under
First, I begin with recognition that this case involves a search of the home. One of the abuses that gave rise to the
In short, there is ample support for the common sense notion that we should be especially solicitous of the privacy interest in a person‘s home in considering search and seizure questions under
Second, I think it obvious that knock and talks have an element of inherent coercion.16 I note the admonition of Caleb Foote many years ago that “what on their face are merely words of request take on color from the officer‘s uniform, badge, gun, and demeanor.” Caleb Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J.Crim. L. & Criminology 402, 403 (1960). It has more recently been observed that “[i]t is inherently improbable that criminal suspects voluntarily would consent to the discovery of the very evidence necessary to seal their legal demise.” Christo Lassiter, Eliminating Consent from the Lexicon of Traffic Stop Interrogations, 27 Cap. U.L.Rev. 79, 128 (1998). A police request for con
Third, there is a question regarding a promise of leniency or similar representations. In this case, law enforcement officers represented that they were not interested in the crimes of the homeowner, but only in the health of third parties. This representation is indistinguishable from the representation made in State v. Howard, 509 N.W.2d 764 (Iowa 1993). In Howard, we held that an officer‘s statement that “no one was in trouble and that the officer intended only to recover the stolen property” was a sufficient promise of leniency to invalidate consent to search. Howard, 509 N.W.2d at 766.
Further, in State v. Reinier, 628 N.W.2d 460, 469 (Iowa 2001), a resident signed a written consent form stating that the resident consented to the search, that the consent was “free from duress and coercion,” that the party could ask the officers “to stop searching at any time,” and that the officers could not make the search of the property except “by legal warrant.” Appendix at 56, State v. Reinier, 628 N.W.2d 460 (Iowa 2001) (No. 99-1963). Notwithstanding the execution of the consent, the officers’ statements that they were not looking for small quantities of drugs but “meth labs” and “major dealers” were found to bear on the voluntariness of the consent because the statements reflected limitations on the nature of the crime under investigation. We stated in Reinier that such statements “subtly create a false belief that no adverse consequences” will result from the search even when the police obtain a written consent to search from the defendant. Reinier, 628 N.W.2d at 469. Like Howard, our holding and analysis in Reinier strongly indicates the consent in this case should not be considered voluntary.
A ruling to the contrary in this case would amount to a departure from our established approach in Howard and Reinier. Citing Reinier with approval, Professor LaFave emphasizes that even a truthful representation that tends to minimize the consequences undermines voluntariness. 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(n), at 140 (4th ed.2004) [hereinafter LaFave].
Fourth, there was an assertion of authority when the officers directed persons to sit on couches and leave the premises. It may not have technically amounted to a seizure, but nonetheless it appears that police were asserting control of the situation. Police commands in the confines of a home suggest consent may be more a product of acquiescence than a truly voluntary act. This conduct is a factor that tips against voluntariness. See Randolph, 547 U.S. at 121, 126 (stating where police separate co-occupant for purpose of avoiding possible objections of one of the occupants to
Fifth, law enforcement did not advise the resident that she had a right to refuse consent. We discussed this еlement extensively in Pals, observing a disclosure of the right to decline the search is a very important feature of determining whether there has been an appropriate balance between police authority and the rights of citizens. See Pals, 805 N.W.2d at 783. As noted by Justice Stevens in the context of the search of a home, cotenants should be advised that “each of the partners has a constitutional right that he or she may independently assert or waive.” Randolph, 547 U.S. at 125, 126 (Stevens, J., concurring). While under a Schneckloth-type totality-of-the-circumstances test the failure to inform a suspect of the right to refuse consent is not dispositive, I would accord it great weight in the knock-and-talk context. Where the privacy interests are the highest and most intense, a truly voluntary consent to search is less likely than where the invasion of privacy is minimal. Stated in other words, ignorant consent does not seem likely to be truly voluntary when uniformed police arrive at the home and seek to search highly private areas.18
In this regard, it is important to further note that the repetitive refusal to consent is an aggravating factor.19 4 LaFave § 8.2(f), at 98 (stating it would seem that a suspect‘s earlier refusal to give consent is a factor which is properly taken into account as part of the totality of circumstances in judging the later consent). At least one commentator has suggested that once a person declines consent to a search, a rule similar to that in Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), should apply, namely, that police must scrupulously honor the request in order to avoid implicit coercion incompatible with
Under the circumstances, namely, a search of a home, the lack of a clear statement of the right to refuse consent, statements limiting the purpose of the search, and the repeated refusal to consent to search, I would hold the search is involuntary under
Police can request consent to enter and search a home in the course of investigating a complaint without intimidation, implied authority, or minimizing the cоnsequences. We think the fair accommodation between the interest in effective law enforcement and our fundamental belief in fair law enforcement procedures requires this conclusion.
The cases try to put a degree of structure on the determination of voluntariness, and I think that Howard, Reinier, and Randolph collectively require a finding of involuntariness. If we do not utilize this caselaw to structure the analysis, we are left with a wide open, totality-of-the-circumstances test in which the seven members of this court, in essence, sit as a jury to weigh whether the consent was really a voluntary one or whether it was directly or
Yet, it is not at all surprising, and indeed, it is completely to be expected, that members of this court, like members of a jury, would have different views in many cases. Specifically, the majority believes the record shows that the resident had knowledge of her right to decline the request to search and that the environment was not sufficiently coercive to invalidate the search. For the reasons already stated, I see the situation much differently.
In Pals, we declined to reach the question of whether we should abandon a Schneckloth-type voluntariness test in favor of the knowing and voluntary waiver test in Zerbst. Pals, 805 N.W.2d at 782. It was unnecessary in Pals to reach the larger issue as the court determined a narrower ground was sufficient to decide the issues at hand. Id.
While deciding an issue on narrow grounds is generally sound, this case demonstrates that a Schneckloth-type voluntariness test, even one “with teeth,” does not yield completely satisfactory results. As a leading authority has noted in the context of Schneckloth, “[I]t can seldom be said with confidence that a particular combination of factors will inevitably ensure a finding of either consent or no consent” because of the difficulty in applying the multifactored voluntariness test. 4 LaFave § 8.2, at 53-54. The spongy nature of the Schneckloth voluntariness test has not escaped the courts, where it has been noted that courts can be bogged down in “needless suppression motions, hearings, and appeals.” Hayes v. State, 794 N.E.2d 492, 497-98 (Ind.Ct.App.2003).20
There have been several judicial reactions to the inherent instability of Schneckloth-type totality-of-the-circumstances review. One, as noted by Professor Weinreb, has been for courts to simply “provide a lengthy factual description followed by a conclusion ... without anything to connect the two.” Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L.Rev. 47, 57 (1974). Another approach is to give lip service to the open-ended totality-of-the-circumstances test in Schneckloth, but instead focus on something else, such as the wording of the request (was it a question or a demand) or upon police misconduct. See William J. Stuntz, Privacy‘s Problem and the Law of Criminal Procedure, 93 Mich. L.Rev. 1016, 1064 (1995) (stating that the consent issue often turns on whether police frame command as a question or a demand); Brian A. Sutherland, Note, Whether Consent to Search Was Given Voluntarily: A Statistical Analysis of Factors That Predict the Suppression Rulings of the Federal District Courts, 81 N.Y.U. L. Rev. 2192, 2195 (2006) (finding that police misconduct rather than voluntariness factors is most predictive of outcomes). Even these reformulated shortcuts are not always consistently applied,
In light of the difficulties of applying a multifactored test, a number of states have adopted the view that in the knock-and-talk setting, police must first advise a resident of his or her right to refuse consent before consent may be considered voluntary. See, e.g., State v. Brown, 356 Ark. 460, 156 S.W.3d 722, 732 (2004); Graves v. State, 708 So.2d 858, 864 (Miss.1997); State v. Johnson, 68 N.J. 349, 346 A.2d 66, 68 (1975); State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927, 932-33 (1998).21 These cases generally find that knock-and-talk procedures carry with them a degree of coercion; that the home is entitled to special
It is sometimes claimed that advising a person of the right to refuse consent would deprive police of an effective law enforcement tool. Indeed, Schneckloth itself states that a requirement of a warning would “create serious doubt whether consent searches could continue to be conducted.” Schneckloth, 412 U.S. at 229. Such an assertion is logically flawed and factually incorrect.
First, the effective law enforcement argument proves too much. If depriving police of a tool that produces evidence is the standard, the search and seizure provisions of
In any event, the available empirical evidence is that requiring knowledge of the right to refuse consent does not dramatically reduce the number of consent searches. Empirical data from Ohio and New Jersey demonstrate that requiring warnings in the context of automobile searches only marginally decreases consent to search. See Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the “Voluntary” Waiver of Fourth Amendment Rights, 44 How. L.J. 349, 370 (2001) (stating warnings reduced consent to search by motorists by less than ten percent).
The Schneckloth Court also declared that it would be “impractical” to provide warnings in the give and take of police encounters with citizens. Professor Adams declared such an argument “absurd.” Adams, 12 St. Louis L.Rev. at 447. Subsequent events have vindicated his position. California and New Jersey have agreed to settlements of lawsuits which require written warnings for motorists when officers seek consent to search. The FBI has used written consents that advise citizens of their right to refuse consent since the time of Schneckloth, and the caselaw across the country demonstrates that law enforcement officers commonly seek written consent to search. See, e.g., United States v. Boone, 245 F.3d 352, 362 (4th Cir.2001); United States v. Maez, 872 F.2d 1444, 1453-54 (10th Cir.1989); United States v. Tatman, 615 F.Supp.2d 664, 670 (S.D.Ohio 2008); State v. Brown, 356 Ark. 460, 156 S.W.3d 722, 724-25 (2004).
Indeed, law enforcement authorities in Iowa are no different than those in other states when it comes to written consent to search. Our caselaw shows that written consent forms that advise a party of his right to refuse consent are practical and in use in Iowa. See State v. Howard, 509 N.W.2d 764 (Iowa 1993); State v. Dougherty, No. 09-0812, 2011 WL 441551, at *2 (Iowa Ct.App. Feb. 9, 2011); State v. DeWitt, No. 02-1379, 2003 WL 22805617, at *2 (Iowa Ct. App. Nov. 26, 2003). And, in this case, law enforcement officers properly recorded the encounter, thereby eliminating the “he said, she said” swearing match.22 Whatever else might be true, obtaining written consents that contain appropriate brief statements advising citizens of the right to refuse consent is not impractical at all.
Indeed, our precedents are strongly pushing in the direction of cleaning up Schneckloth. In Welch v. Iowa Depart-
[A] bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens.
Welch, 801 N.W.2d at 601. This powerful language cuts dead against continued application of the totality-of-the-circumstances test of Schneckloth.
We can continue to employ a multifactoried test for determining consent issues under
As a result, I am convinced that it would be better simply to require that law enforcement advise a homeowner or resident of his or her constitutional right to decline to consent to a search. This would provide a much clearer rule for law enforcement and citizens alike. See Welch, 801 N.W.2d at 601. When the homeowner or resident is advised of his or her right to consent, a presumption would arise that the warnings are voluntary. On the other hand, the failure of police to provide such a warning would result in reversal. Such an approach is consistent with constitutional values, provides a more workable rule for law enforcement, and ensures that citizens are aware of their constitutional rights before surrendering them.23
In evaluating this case, we must ensure that our approach to
In any event, this case, decided by a four to three vote, hаs a clear practical message. When law enforcement does not advise a homeowner or resident of their right to refuse consent, a subsequent search might well be found invalid under
WIGGINS and HECHT, JJ., join this concurrence in part and dissent in part.
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
v.
Roscoe A. RIES, Jr., Respondent.
No. 11-1865.
Supreme Court of Iowa.
Feb. 17, 2012.
Notes
This approach is consistent with our past cases. Reinier treated a statement that minimized the consequences of possessing small amounts of drugs as one factor in the analysis of whether consent to search was voluntary. On other occasions, we have held that statements made in response to a promise of leniency are per se inadmissible. See State v. Kase, 344 N.W.2d 223, 225-26 (Iowa 1984). Evidence improperly obtained in violation of the Fourth Amendment is excluded from the trial under the exclusionary rule in an effort to deter police misconduct, “to provide a remedy for a constitutional violation[,] and to protect the integrity of the judiciary.” Lane, 726 N.W.2d at 392; see also State v. Cline, 617 N.W.2d 277, 289 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). On the other hand, “[s]tatements exacted by promissory leniency are not excluded on prophylactic grounds to deter police misconduct; they are excluded on grounds that statements exacted under such circumstances are unreliable.” Kase, 344 N.W.2d at 226. When a statement is made in response to a promise of leniency, the statement‘s “probative value, if any exists, is substantially outweighed by the danger of confusion of issues and would be misleading to the jury under Iowa rule of evidence 403.” State v. McCoy, 692 N.W.2d 1, 28 (Iowa 2005) (citation and internal quotation marks omitted). When reviewing a suspect‘s consent to search the totality-of-the-circumstances test is used, and under that test, whether an officer has minimized the seriousness of possessing drugs is one factor among many that the court must consider.