State of Iowa v. Nicholas Dean Wright ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–0180
Submitted September 17, 2020—Filed June 18, 2021
STATE OF IOWA,
Appellee,
vs.
NICHOLAS DEAN WRIGHT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cerro Gordo County,
Adam D. Sauer, District Associate Judge.
A defendant appeals the denial of his motion to suppress evidence
based on the warrantless seizure of his trash. AFFIRMED ON
CONDITION AND REMANDED WITH DIRECTIONS.
McDonald, J., delivered the opinion of the court, in which Oxley and
McDermott, JJ., joined, and in which Appel, J., joined as to divisions I,
IV(B)–(E), and V. Appel, J., filed a special concurrence. Christensen, C.J.,
filed a dissenting opinion, in which Waterman and Mansfield, JJ., joined.
Waterman, J., filed a dissenting opinion, in which Christensen, C.J., and
Mansfield, J., joined. Mansfield, J., filed a dissenting opinion, in which
Christensen, C.J., and Waterman, J., joined.
2
Colin C. Murphy (argued) of Gourley Rehkemper Lindholm, P.L.C.,
West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines (argued),
Assistant Attorney General, Carlyle D. Dalen, County Attorney, and
Steven D. Tynan, Assistant County Attorney, for appellee.
3
McDONALD, Justice.
“Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are commands
to the citizen.” Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct.
564, 575 (1928) (Brandeis, J., dissenting), overruled in part by Katz v.
United States, 389 U.S. 347, 88 S. Ct. 507 (1967), and Berger v. New York,
388 U.S. 41, 87 S. Ct. 1873 (1967). We are tasked in this case of
determining whether this bedrock constitutional principle prohibits a
peace officer engaged in general criminal investigation without a warrant
from taking a citizen’s opaque trash bags left outside for collection,
opening the trash bags, and rummaging through the papers and effects
contained therein.
I.
Nicholas Wright lives in Clear Lake. Like most municipalities, Clear
Lake regulates the “storage, collection and disposal of solid waste” to
protect the “health, safety and welfare” of its residents. Clear Lake, Iowa,
Code of Ordinances § 105.01 (2003). The city restricts the manner in
which residents can dispose of waste. See id. at §§ 105.05 (restricting
open burning), .06 (requiring separation of yard waste), .07 (prohibiting
littering), .08 (prohibiting open dumping). The city requires “the owner or
occupant of the premises served” to set out the solid waste containers for
collection once per week “at the curb or alley line.” Id. at §§ 105.10(3),
106.04. The city limits who may access and collect solid waste to licensed
and contracted collectors. See id. § 105.02(1) (defining collector); id.
§§ 106.01 (providing for collection service), .06 (granting collectors right of
entry), .07 (prohibiting solid waste collection without a city contract), .11
(setting forth licensing requirements). The city makes it “unlawful for any
person to . . . [t]ake or collect any solid waste which has been placed out
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for collection on any premises, unless such person is an authorized solid
waste collector.” Id. § 105.11(4). Violation of this ordinance is punishable
by a fine. See id. § 1.15.
Despite the ordinance making it unlawful for any person (other than
an authorized collector) to take solid waste placed out for collection, Officer
Brandon Heinz, on three occasions, during the dark of night, without
probable cause or a warrant, went into the alley behind Wright’s residence
to take Wright’s garbage bags and search through them to “obtain
information about what Mr. Wright may have been doing inside [his]
house.” More specifically, Officer Heinz was “looking for anything related
to drug activity.” Heinz focused his criminal investigation on Wright based
on information from Deputy Tami Cavett. She informed Heinz that a male
nicknamed “Beef” was selling drugs and lived near a local bar. Through
the course of his investigation, Heinz discovered Wright went by the
nickname “Beef” and lived three blocks from the bar.
The first time Heinz went through Wright’s papers and effects
occurred on September 11, 2017. Around 11:30 p.m. that night, Heinz
observed two garbage cans without lids at the edge of the alley behind
Wright’s residence. Heinz believed the garbage cans had been placed there
for waste collection the next morning. He testified he was able to access
the garbage bags without leaving the alley. The bags were opaque, and
Heinz “couldn’t see through them or anything.” He was not “able to
observe anything that led [him] to believe there was evidence of criminal
activity in the bag until [he] opened the bag.” Heinz “retrieved the garbage
bags and brought them to the police department where [he] went through
them.”
Heinz testified he “[s]earched through the contents for narcotics
related contraband.” He found empty poppy seed packages and fabric
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squares with circular brown stains around one inch in diameter and seeds
stuck to the fabric. He submitted the seeds and fabric squares to the
Division of Criminal Investigation (DCI) for testing. Heinz received the DCI
lab report on November 2, which confirmed the seeds were poppy seeds.
One fabric square tested positive for morphine. Two fabric squares tested
positive for a combination of morphine and cocaine.
After receiving test results from DCI, Heinz again took garbage bags
from the alley behind Wright’s home on the nights of November 6 and
November 20 and returned to the police station to search through the
bags. On November 6, Heinz found two pieces of mail addressed to Wright,
one from a bank and one from a telecommunications company. Heinz
found more fabric squares with brown stains and poppy seeds stuck to
them. On November 20, he found similar items as well as empty poppy
seed packages and a 10-pound poppy seed package that had 9.75 pounds
remaining in the package.
Heinz then applied for and was granted a search warrant. Probable
cause for the search warrant was predicated on the evidence obtained from
the warrantless seizure and search of Wright’s trash bags. The police
executed the warrant at Wright’s residence on November 21. They
discovered a baggie containing two grams of marijuana and several
capsules of Vyvanse, a prescription drug for which Wright had no
prescription.
The State charged Wright with three counts of unlawful possession
of drugs: (1) possession of a prescription drug without a valid prescription,
in violation of Iowa Code section 155A.21 (2017); (2) possession of
marijuana, in violation of Iowa Code section 124.401(5); and (3) possession
of Vyvanse, in violation of Iowa Code section 124.401(5).
6
Wright timely filed a motion to suppress evidence. Wright argued
Heinz’s warrantless removal of the trash bags from Wright’s residence and
search of the papers and effects contained therein violated Wright’s federal
and state constitutional rights to be free from unreasonable seizures and
searches. Wright made two arguments in support of his motion. First, he
argued Heinz physically trespassed on his property. Second, he argued he
had a reasonable expectation of privacy in the contents contained in his
trash bags. Wright argued the search warrant ultimately issued was
without probable cause if the evidence obtained from the warrantless
seizures and searches of his trash bags were suppressed. The district
court denied the motion.
Pursuant to a plea agreement, the State subsequently dismissed
count one of the trial information. Following a trial on the minutes of
testimony, the district court found Wright guilty of counts two and three
and sentenced Wright to serve two days in jail.
Wright appealed, and we transferred the case to the court of appeals.
The court of appeals affirmed the district court’s denial of Wright’s motion
to suppress evidence. The court of appeals reasoned Heinz did not
unlawfully trespass on Wright’s property because there was no physical
intrusion into a constitutionally protected area. The court of appeals
reasoned Wright had no reasonable expectation of privacy in the contents
of his garbage under federal or state law.
We granted Wright’s application for further review. “On further
review, we have the discretion to review any issue raised on appeal.”
Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255 (Iowa 2012) (quoting State
v. Marin, 788 N.W.2d 833, 836 (Iowa 2010), overruled on other grounds by
Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016)). Where, “as here,
a defendant raises both federal and state constitutional claims, the court
7
has discretion to consider either claim first or consider the claims
simultaneously.” State v. Pals, 805 N.W.2d 767, 772 (Iowa 2011). Because
Wright’s state constitutional claim is dispositive of the case, we exercise
our discretion to address only that claim. The court of appeals decision is
final as to Wright’s federal claim.
II.
The Iowa Constitution provides, “This Constitution shall be the
supreme law of the state, and any law inconsistent therewith, shall be
void.” Iowa Const. art. XII, § 1. The Iowa Constitution provides any law—
without regard to its source—inconsistent therewith “shall be void.” Id.
None of the departments of our state government are authorized—by bill,
order, rule, judicial decision, or otherwise—to make law or legalize conduct
infringing upon the minimum rights guaranteed in the Iowa Constitution.
We “must provide at a minimum the degree of protection [the constitution]
afforded when it was adopted.” United States v. Jones, 565 U.S. 400, 411,
132 S. Ct. 945, 953 (2012) (emphasis omitted).
In determining the minimum degree of protection the constitution
afforded when adopted, we generally look to the text of the constitution as
illuminated by the lamp of precedent, history, custom, and practice. See
Planned Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206, 247
(Iowa 2018) (Mansfield, J., dissenting) (beginning constitutional analysis
with the text and original understanding); State v. Crooks, 911 N.W.2d
153, 167 (Iowa 2018) (“In exercising our independent judgment, we are
‘guided by “the standards elaborated by controlling precedents and by
[our] own understanding and interpretation of the [Iowa Constitution’s]
text, history, meaning, and purpose.” ’ ” (alterations in original) (quoting
State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014))); State v. Green, 896
N.W.2d 770, 778 (Iowa 2017) (“[W]e interpret our constitution consistent
8
with the text given to us by our founders through the lens of the facts and
circumstances of today.”); State v. Senn, 882 N.W.2d 1, 8 (Iowa 2016)
(“First and foremost, we give the words used by the framers their natural
and commonly-understood meaning. However, we may also examine the
constitutional history and consider the object to be attained or the evil to
be remedied as disclosed by the circumstances at the time of adoption.”
(quoting Star Equip., Ltd. v. State, 843 N.W.2d 446, 457–58 (Iowa 2014))).
This court is the final arbiter of the meaning of the Iowa
Constitution. While we give respectful consideration to the decisions of
the United States Supreme Court in its interpretation of parallel provisions
of the Federal Constitution, we have a duty to independently interpret the
Iowa Constitution. See State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019).
Our duty to independently interpret the Iowa Constitution holds even
“though the two provisions may contain nearly identical language and
have the same general scope, import, and purpose.” State v. Brooks, 888
N.W.2d 406, 410–11 (Iowa 2016) (quoting State v. Jackson, 878 N.W.2d
422, 442 (Iowa 2016)). On questions of state constitutional law, the
Supreme Court “is, in law and in fact, inferior in authority to the courts of
the States.” McClure v. Owen, 26 Iowa 243, 249 (1868); see also Minnesota
v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679 (1940) (“It is
fundamental that state courts be left free and unfettered by us in
interpreting their state constitutions.”).
Our duty of independent interpretation is truly independent.
Federal constitutional law is not a framework or “floor” that dictates the
required doctrine or minimum content of the state constitution. See State
v. Ingram, 914 N.W.2d 794, 799 (Iowa 2018) (“Although the Iowa and
United States Constitutions have similarly worded search and seizure
provisions, that does not mean the two regimes and the cases under them
9
may be conflated.”).1 “However useful that floor-ceiling metaphor may be,
it obscures the larger truth that the level of protection of rights under the
state constitutions can be the same as, higher than, or lower than that
provided by the federal constitution.” Malyon v. Pierce County, 935 P.2d
1272, 1281 n.30 (Wash. 1997) (en banc) (quoting Neil McCabe, The State
and Federal Religion Clauses: Differences of Degree and Kind, 5 St. Thomas
L. Rev. 49, 50 (1992)).2
In claims arising under the Iowa Constitution, the right question is
thus not whether the Iowa Constitution should be interpreted more
stringently or less stringently than its federal counterpart. “This court is
free to interpret our constitution to provide less or more protection than
the Federal Constitution.” Brown, 930 N.W.2d at 857 (McDonald, J.,
concurring specially). Instead,
The right question is what the [Iowa Constitution] means and
how it applies to the case at hand. The answer may turn out
1Although the Federal Constitution does not set a legal floor in terms of dictating
content of the Iowa Constitution, it does provide an effective floor in the practical sense
that government officials are required to comply with the more stringent standard.
2See also State v. Oliver, 372 S.E.2d 256, 259 (Ga. Ct. App. 1988) (“If anything,
the Georgia Constitution is less protective than the Fifth Amendment, for it recognizes an
exception to the bar against double jeopardy when the first trial ends in mistrial.”); State
v. Jackson, 503 S.E.2d 101, 103 (N.C. 1998) (“Strictly speaking, however, a state may
still construe a provision of its constitution as providing less rights than are guaranteed
by a parallel federal provision.”); Alva State Bank & Tr. Co. v. Dayton, 755 P.2d 635, 638
(Okla. 1988) (Kauger, J., specially concurring) (per curiam) (recognizing that if the state
constitution provides less protection than federal law, then “the question must be
determined by federal law”); Ex parte Tucci, 859 S.W.2d 1, 32 n.34 (Tex. 1993) (Phillips,
C.J., concurring) (“Literally read, this position makes no logical sense. If our text was
written at a different time by different people with different concerns, then the protection
it affords may be greater, lesser, or the same as that provided by a different provision in
the United States Constitution.”); Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App.
1998) (en banc) (“The Supremacy Clause means that, in practical terms, persons will
always be able to avail themselves of the greater right. This is very important to litigants
and their counsel, who are naturally and properly result-oriented. But it does not mean
that a court, faithfully interpreting state laws, can only find in them protections that
equal or exceed federal laws.”); State v. Briggs, 199 P.3d 935, 942 (Utah 2008) (recognizing
state law may “provide a lesser level of protection,” in which case the court addresses the
federal claim).
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the same as it would under federal law. The [Iowa
Constitution] may prove to be more protective than federal
law. The [Iowa Constitution] also may be less protective. In
that case the court must go on to decide the claim under
federal law, assuming it has been raised.
Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga.
L. Rev. 165, 179 (1984) [hereinafter Linde]; see also Massachusetts v.
Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984) (Stevens, J.,
concurring in the judgment) (per curiam) (quoting Linde, 18 Ga. L. Rev. at
179).
III.
Article I, section 8 of the Iowa Constitution provides:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable seizures
and searches shall not be violated; and no warrant shall issue
but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons and things to be seized.3
A.
At the time of America’s founding, the prohibition against
“unreasonable” seizures and searches had a particular meaning. John
Adams first introduced the term “unreasonable” into search and seizure
law in his draft of the 1780 Massachusetts Constitution. See
Commonwealth v. Haynes, 116 A.3d 640, 650 (Pa. Super. Ct. 2015).
“Adams’s authorship reveals that ‘unreasonable’ was derived from Sir
Edward Coke’s earlier use of ‘against reason’ as a synonym for inherent
illegality or unconstitutionality.” Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 Mich. L. Rev. 547, 554–55 (1999).
3The Fourth Amendment to the United States Constitution is materially
indistinguishable from article I, section 8 of the Iowa Constitution. Because our search
and seizure jurisprudence is intertwined with federal search and seizure jurisprudence,
we will discuss federal cases as relevant.
11
The Fourth Amendment did not refer to reasonableness in a
relativistic, balancing sense. “Originally, the word ‘unreasonable’ in the
Fourth Amendment likely meant ‘against reason’—as in ‘against the
reason of the common law.’ ” Carpenter v. United States, 585 U.S. ___, ___,
138 S. Ct. 2206, 2243 (2018) (Thomas, J., dissenting) (quoting Laura K.
Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1270
(2016)); see also Torres v. Madrid, 592 U.S. ___, ___, 141 S. Ct. 989, 996
(2021) (“Early American courts . . . embraced other common law principles
of search and seizure.”); United States v. Carloss, 818 F.3d 988, 1006 (10th
Cir. 2016) (Gorsuch, J., dissenting) (“[T]he Fourth Amendment, at a
minimum, protects the people against searches of their persons, houses,
papers, and effects to the same degree the common law protected the
people against such things at the time of the founding, for in prohibiting
‘unreasonable’ searches the Amendment incorporated existing common
law restrictions on the state’s investigative authority.”). Justice Story, in
his leading treatise on the Federal Constitution, stated the prohibition
against unreasonable seizures and searches “is little more than the
affirmance of a great constitutional doctrine of the common law.” 3 Joseph
Story, Commentaries on the Constitution of the United States §§ 1894–1895,
at 748 (1833). “[B]y prohibiting ‘unreasonable’ searches and seizures in
the Fourth Amendment, the Founders ensured that the newly created
Congress could not use legislation to abolish the established common-law
rules of search and seizure.” Carpenter, 585 U.S. at ___, 138 S. Ct. at
2243.
B.
The original understanding of article I, section 8 is in accord with
the original understanding of the Fourth Amendment. See Pals, 805
N.W.2d at 786 (Waterman, J., dissenting). As we long ago explained, “The
12
term ‘unreasonable’ in the constitutions of the States, has allusion to what
had been practiced before our revolution, and especially to general search
warrants, in which the person, place or thing was not described.” Santo
v. State, 2 Iowa (2 Clarke) 165, 215 (1855).
Consistent with this understanding, we have long held that a peace
officer engaged in general criminal investigation acted unreasonably and
unlawfully when he trespassed against a citizen without first obtaining a
warrant based on probable cause. See Godfrey v. State, 898 N.W.2d 844,
887–88 (Iowa 2017) (Mansfield, J., dissenting) (recognizing officer conduct
was governed by common law trespass actions). In the colorful case of
McClurg v. Brenton, the mayor, “the chief of police, the captain of the night
force, a city alderman, the city physician, the ‘man with the hounds,’ and
various other gentlemen, presumably volunteers in the cause of retributive
justice,” showed up at the plaintiff’s home at night without a warrant to
search for allegedly stolen chickens. 123 Iowa 368, 369–70, 98 N.W. 881,
881–82 (1904). They gained entry into the home and the chicken house
and conducted what was described as a “boisterous” search. Id. at 371,
98 N.W. at 882 (noting a “member of the party became somewhat confused
as to the real object of the search, and demanded to know whether there
was ‘any beer in the cellar’ ”). The plaintiff sued for trespass. See id. at
372, 98 N.W. at 882. In that case, we stated the great principle underlying
the prohibition against unreasonable search and seizure:
The right of the citizen to occupy and enjoy his home, however
mean or humble, free from arbitrary invasion and search, has
for centuries been protected with the most solicitous care by
every court in the English-speaking world, from Magna Charta
down to the present, and is embodied in every bill of rights
defining the limits of governmental power in our own republic.
The mere fact that a man is an officer, whether of high
or low degree, gives him no more right than is possessed by
the ordinary private citizen to break in upon the privacy of a
13
home and subject its occupants to the indignity of a search
for the evidences of crime, without a legal warrant procured
for that purpose. No amount of incriminating evidence,
whatever its source, will supply the place of such warrant. At
the closed door of the home, be it palace or hovel, even
bloodhounds must wait till the law, by authoritative process,
bids it open.
Id. at 371–72, 98 N.W. at 882.
McClurg involved the search of a home and outbuildings, but the
same prohibition against unlawful seizures and searches extended outside
the home to seizures of and interferences with personal property. See
Ingram, 914 N.W.2d at 817 (stating citizens have a protected interest in
papers and effects outside the home).
[T]here is no evidence at all that [the Framers] intended to
exclude from protection of the Clause all searches occurring
outside the home. The absence of a contemporary outcry
against warrantless searches in public places was because,
aside from searches incident to arrest, such warrantless
searches were not a large issue in colonial America.
United States v. Chadwick, 433 U.S. 1, 8, 97 S. Ct. 2476, 2482 (1977),
abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982 (1991).
In Pomroy & Co. v. Parmlee, the plaintiffs sued out a criminal
warrant and civil writ of attachment in Scott County against the defendant
for the purpose of attaching and levying on the defendant’s property. 9
Iowa 140, 143–44 (1859). The sheriff of Scott County seized the
defendant’s property, a trunk, in Poweshiek County and returned it to
Scott County whereupon it was opened and searched and a bag of gold
coin was found in it. See id. at 144–45. The plaintiffs sought to levy on
the gold. See id. at 145. The defendant objected on the ground the sheriff
had no authority under the writ of attachment to seize property outside
Scott County. See id. at 144. We agreed: “The authority (of the sheriff) is
given upon this restriction and condition, that it shall not be abused or
exceeded, or colorably used to effect an unlawful purpose.” Id. at 146
14
(alteration in original) (quoting Ilsley v. Nichols, 29 Mass. (12 Pick.) 270,
281 (1831)). We concluded the sheriff’s seizure of the defendant’s trunk
outside his county was “a great abuse of the law . . . and of the authority
of its officer.” Id. at 147. We explained, “The law will operate
retrospectively to defeat all acts thus done under color of lawful authority,
when exceeded; and a fortiori, will it operate prospectively, to prevent the
acquisition of any lawful rights, by the excess and abuse of an authority
given for useful and beneficial purposes.” Id. at 146–47 (quoting Ilsley, 29
Mass. (12 Pick.) at 281).
Similarly, in State v. Ward, a pharmacist was prosecuted for illegal
liquor sales. 75 Iowa 637, 36 N.W. 765 (1888). A constable entered the
defendant’s car with “no warrant, and he seized the liquor therein, and
removed a portion of it on a dray near the car before the warrant was
placed in his hands.” Id. The court explained the officer “may have been
guilty of a trespass.” Id. at 639, 36 N.W. at 767. The court further
explained that although the “search and seizure may have been illegally
made in the first instance,” that was not a defense to the charge. Id. at
640, 36 N.W. at 767.4
4The disposition of the case made sense at the time because Iowa had not yet
adopted an exclusionary rule. At that time, those subject to unlawful seizures and
searches could pursue civil actions for nominal, actual, and punitive damages against
the offending officer and his sureties. See McClurg, 123 Iowa at 373, 98 N.W. at 883 (“If
the jury should find for plaintiff––that the wrongful search was made . . . —they could, in
addition to actual damages, assess a greater or less sum against the defendants by way
of punishment or as exemplary damages.”); Strunk v. Ocheltree, 11 Iowa 158, 159–60
(1860) (“The defendant levied upon the property and took possession of it by virtue of his
office, and sold the same when he had no right to do so. . . . The wrong was committed
by color of his office, a wrong which his sureties obligated themselves he would not do,
and for which they should be held responsible.”); Plummer v. Harbut, 5 Iowa (5 Clarke)
308, 314 (1857) (“If defendants, in executing the process, acted in good faith, and in their
entry upon plaintiff’s premises, were guilty of no oppression, and made no disturbance,
further than was necessary in making the seizure, the trespass, even if without authority,
was nominal only, and nominal damages must limit the extent of his recovery.”).
15
As our precedents demonstrate, under Iowa law “[a] trespassing
officer is liable for all wrong done in an illegal search or seizure. The
constitutional provision is a sacred right, and one which the courts will
rigidly enforce.” State v. Tonn, 195 Iowa 94, 106, 191 N.W. 530, 535
(1923), abrogated by State v. Hagen, 258 Iowa 196, 137 N.W.2d 895(1965); see also Godfrey, 898 N.W.2d at 887 (explaining police conduct
was regulated by common law trespass actions).
C.
Iowa adhered to this original understanding of article I, section 8
until the era of incorporation of the Bill of Rights into the Fourteenth
Amendment. Although not compelled to construe article I, section 8 to
follow the Supreme Court’s construction of the Fourth and Fourteenth
Amendments, see Brown, 930 N.W.2d at 857–58 (discussing incorporation
doctrine and state constitutional interpretation), this court nonetheless
began to do so. See Kain v. State, 378 N.W.2d 900, 902 (Iowa 1985) (“[O]ur
interpretation of article I, section 8 has quite consistently tracked with
prevailing federal interpretations . . . .”). As a consequence, this court’s
jurisprudence changed rather dramatically in conjunction with changes in
the Supreme Court’s jurisprudence. The Supreme Court moved away from
the original understanding of the Fourth Amendment right in two
significant respects. First, the Court imposed a modern, relativistic
meaning on the word “unreasonable.” See Ingram, 914 N.W.2d at 804
(“[T]he new innovative touchstone under the more recent Supreme Court
cases is a free-floating and open-ended concept of ‘reasonableness’ . . . .”).
Second, in Katz v. United States, the Court refocused the inquiry from
common law trespass to the aggrieved party’s reasonable expectation of
privacy. See 389 U.S. at 353, 88 S. Ct. at 512.
16
The Supreme Court’s first doctrinal change involved a change in the
interpretation of “unreasonable.” The Supreme Court adopted a
relativistic sense of reasonableness in Carroll v. United States, 267 U.S.
132, 147, 45 S. Ct. 280, 283 (1925). Dealing with practical problems
related to the enforcement of prohibition, Chief Justice Taft loosened
restrictions on the exercise of official authority and explained the “Fourth
Amendment does not denounce all searches or seizures, but only such as
are unreasonable.” Id. However, he did not mean unreasonable as against
the common law. Instead, he meant unreasonable in a relativistic sense—
as in determining whether the action was reasonable under the
circumstances. See id. at 149, 45 S. Ct. at 283–84 (describing valid
searches and seizures as “reasonably arising out of circumstances known
to the seizing officer”).
The Carroll Court’s reinterpretation of the Fourth Amendment
gained traction. In United States v. Rabinowitz, the Court stated the
legality of “searches turn[s] upon the reasonableness under all the
circumstances and not upon the practicability of procuring a search
warrant.” 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950), overruled in part
by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969), abrogation
recognized by Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419 (2011).
By the 1970s, the Court concluded the “touchstone” of the Fourth
Amendment was “the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.”
Pennsylvania v. Mimms, 434 U.S. 106, 108–09, 98 S. Ct. 330, 332 (1977)
(per curiam) (second quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868,
1878–79 (1968)). The Court continues to hold “the ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’ ” Riley v. California, 573 U.S.
373, 381–82, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart,
17
547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006)). Under modern doctrine,
reasonableness means determining the constitutionality of police conduct
“by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.” Id. at 385, 134 S. Ct.
at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct.
1297, 1300 (1999)).
The second significant doctrinal change irrupted from the pen of
Justice Harlan in his concurrence in Katz. See Carpenter, 585 U.S. at ___,
138 S. Ct. at 2237–38 (discussing history of Katz). In Katz, the Court
asserted “the Fourth Amendment protects people, not places” and “what
[a person] seeks to preserve as private . . . may be constitutionally
protected.” 389 U.S. at 351, 88 S. Ct. at 511. Justice Harlan, in a
concurring opinion, articulated an expectation-of-privacy test. See id. at
361, 88 S. Ct. at 516 (Harlan, J., concurring). He “identified a ‘twofold
requirement’ to determine when the protections of the Fourth Amendment
apply: ‘first that a person have exhibited an actual (subjective) expectation
of privacy and, second, that the expectation be one that society is prepared
to recognize as “reasonable.” ’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at
2237 (quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516).
Justice Harlan’s expectation-of-privacy standard quickly became
the primary standard for determining the constitutionality of searches
under the Fourth Amendment. The following year, in Terry v. Ohio, the
Court explained that “wherever an individual may harbor a reasonable
‘expectation of privacy,’ he is entitled to be free from unreasonable
governmental intrusion.” 392 U.S. at 9, 88 S. Ct. at 1873 (citation omitted)
(quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516). By 1979, the Court
stated Katz was the “lodestar” for evaluating claims arising under the
18
Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 739, 99 S. Ct.
2577, 2579–80 (1979). Of note, the Supreme Court’s expectation-of-
privacy standard is not a standard to determine whether a search is
“unreasonable” within the meaning of the Fourth Amendment. Instead, it
is a threshold standard to determine whether a “search” occurred within
the meaning of the Fourth Amendment. See Jones, 565 U.S. at 404–06,
132 S. Ct. 949–50.
This court generally followed these doctrinal developments to
adjudicate claims arising under article I, section 8. In doing so, we
acknowledged the shift from the historic approach. See State v. Davis, 228
N.W.2d 67, 71–72 (Iowa 1975) (“The issue where to draw the line has
spawned a vast body of litigation. The rationale of modern decisions
ordinarily posits the determination not so much on the character of the
property on which the evidence is observed (i.e., public vis-a-vis private,
curtilage vis-a-vis open area) but rather on existence of a reasonable
expectation of privacy.”), overruled by State v. Hanes, 790 N.W.2d 545(Iowa 2010). Despite the incongruence with our own precedents, we
concluded we had “an interest in harmonizing our constitutional decisions
. . . when reasonably possible.” State v. Ochoa, 792 N.W.2d 260, 265 (Iowa
2010) (omission in original) (quoting State v. Groff, 323 N.W.2d 204, 207–
08 (Iowa 1982)). By 1985, we declared that “ ‘our interpretation of article
I, section 8 has quite consistently tracked with prevailing federal
interpretations’ in deciding search and seizure issues.” Id. at 266 (quoting
Kain, 378 N.W.2d at 902). We did so in “a ‘lockstep’ approach to
interpretation of state constitutional provisions.” Id.D.
In recent years, this court has moved away from the lockstep
approach and taken a more historical approach in interpreting article I,
19
section 8. See State v. Coleman, 890 N.W.2d 284, 296 (Iowa 2017) (“As
has been thoroughly canvassed in some of our other opinions, the Iowa
Supreme Court has a long history of independent adjudication of state
constitutional issues. In recent decades, we have reemphasized that
independent constitutional tradition.”).
In State v. Ochoa, we canvassed the relevant historical materials and
concluded our constitution was “intended to provide a limit on arbitrary
searches and seizures, particularly those involving the home.” 792 N.W.2d
at 272. We explained the clause was intended to reject the issuance of
“general warrants without probable cause and without particularity as
reflected in pre-Revolutionary practice.” Id. We also explained this
prohibition necessarily disallowed warrantless searches circumventing the
prohibition against general warrants. See id. at 273 (“It would make no
sense to restrict general warrants and yet allow the same type of broad,
unlimited search without a warrant”). We further noted the constitutional
limitation on the exercise of warrantless authority was not limited to
contexts involving infringements on privacy. See id. at 289 (“Indeed, to
some extent, search and seizure protections must protect more than mere
expectations of privacy if they are to have any bite at all.”).
Two years later, in State v. Short, we noted the deficiencies inherent
in the modern general reasonableness standard:
[A]n interpretation that focuses on the reasonableness clause
as the touchstone of search and seizure law sets up the
intellectual machinery to engulf the warrant clause and make
its mandatory provision ephemeral. The search and seizure
protections of article I, section 8 would be subject to
reasonability determinations by shifting four-member
majorities of this court, based upon pragmatic considerations.
Members of this court—indeed any court—can come up with
ingenious explanations of how just about any search is
reasonable. The cautionary words of Anthony Amsterdam in
his classic study on the Fourth Amendment that reliance on
reasonability threatens to convert “the [F]ourth [A]mendment
20
into one immense Rorschach blot” has even greater urgency
today than it did forty years ago.
851 N.W.2d 474, 501–02 (Iowa 2014) (alterations in original) (citations
omitted) (quoting Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn. L. Rev. 349, 393 (1974)).
Like our court with respect to article I, section 8, the Supreme Court
recently has moved toward a more historical approach to the Fourth
Amendment. See Torres, 592 U.S. at ___, 141 S. Ct. at 995–98, 1000–02
(discussing common law understanding of the Fourth Amendment);
Virginia v. Moore, 553 U.S. 164, 168, 128 S. Ct. 1598, 1602 (2008) (“In
determining whether a search or seizure is unreasonable, we begin with
history. We look to the statutes and common law of the founding era to
determine the norms that the Fourth Amendment was meant to
preserve.”); Atwater v. City of Lago Vista, 532 U.S. 318, 326, 121 S. Ct.
1536, 1543 (2001) (stating the Court is guided by the common law at the
time of the framing); Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct.
1914, 1916 (1995) (“In evaluating the scope of this right, we have looked
to the traditional protections against unreasonable searches and seizures
afforded by the common law at the time of the framing.”).
In United States v. Jones, the Court held “that the Government’s
installation of a GPS device on a target’s vehicle, and its use of that device
to monitor the vehicle’s movements, constitutes a ‘search’ ” within the
meaning of the Fourth Amendment and was thus unlawful when done
without a warrant. 565 U.S. at 404, 132 S. Ct. at 949 (footnote omitted).
The Court explained Katz deviated from the Court’s traditional and
historical “property-based approach” to the Fourth Amendment. Id. at
405–06, 132 S. Ct. at 950. While the Court did not repudiate Katz, it
explained Katz was accretive to and not a substitute for the old doctrine.
21
See id. at 407, 132 S. Ct. at 951 (“Katz . . . established that ‘property rights
are not the sole measure of Fourth Amendment violations,’ [and] did not
‘snuf[f] out the previously recognized protection for property.’ ” (second
alteration in original) (quoting Soldal v. Cook County, 506 U.S. 56, 64, 113
S. Ct. 538, 545 (1992))).
The following year, in Florida v. Jardines, the Court held a peace
officer conducted an unconstitutional search when the officer walked onto
a homeowner’s porch with a drug-sniffing dog to investigate the contents
of the home. 569 U.S. 1, 9–10, 133 S. Ct. 1409, 1416–17 (2013). The
Court explained the peace officer acting without a warrant had the right to
do what “any private citizen might do.” Id. at 8, 133 S. Ct. at 1416 (quoting
Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011)).
However, the officer exceeded the license afforded to private citizens:
“[S]ocial norms that invite a visitor to the front door do not invite him there
to conduct a search.” Id. at 9, 133 S. Ct. at 1416. The Court concluded
law enforcement’s use of the drug-sniffing dog to explore the area around
the home was a search under the Fourth Amendment because the conduct
was an unlicensed physical intrusion. See id. Justice Kagan, joined by
Justices Ginsburg and Sotomayor, concurred in the opinion. See id. at 12,
133 S. Ct. at 1418 (Kagan, J., concurring). In their view, the peace officer,
in exceeding the scope of the license afforded a private citizen by using a
drug dog, committed a trespass at common law and invaded the
defendant’s privacy. See id. at 13, 133 S. Ct. at 1418 (“Was this activity a
trespass? Yes, as the Court holds today. Was it also an invasion of
privacy? Yes, that as well.”).
This court and the Supreme Court’s return to the historical
understandings of seizure and search jurisprudence, to some degree, was
born of necessity. Current Fourth Amendment jurisprudence is a mess.
22
See Short, 851 N.W.2d at 488 (noting scholars characterize the
jurisprudence as “complex and contradictory” (quoting Akhil Reed Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 758 (1994))).
While Katz became “ ‘the basis of a new formula of fourth amendment
coverage,’ it can hardly be said that the Court produced clarity where
theretofore there had been uncertainty. If anything, the exact opposite
has occurred.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 2.1(b), at 597 (6th ed. 2020) [hereinafter LaFave]
(footnote omitted). “The pre-Katz rule . . . was ‘a workable tool for the
reasoning of the courts.’ But the Katz rule . . . is, by comparison ‘difficult
to apply.’ ” Id. (footnotes omitted); see also Morgan Cloud, Pragmatism,
Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. Rev.
199, 253 (1993) (“Over time expectations analysis has produced only an
amorphous formula that allows the Justices to treat the fourth
amendment as an instrument for achieving social goals approved by
shifting majorities on the Court.”); David Gray, The Fourth Amendment
Categorical Imperative, 116 Mich. L. Rev. Online 14, 14–18 (2017)
(explaining how the Katz decision made “current Fourth Amendment
doctrine . . . unfounded, incoherent, and dangerous”). This criticism of
the Supreme Court’s doctrine is widely shared. See Short, 851 N.W.2d at
488 (collecting commentators’ criticisms); William Baude & James Y.
Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev.
1821, 1825 (2016) [hereinafter Baude & Stern] (“The reasonable
expectation of privacy concept has other serious defects, including its
ambiguous meaning, its subjective analysis, its unpredictable application,
its unsuitability for judicial administration, and its potential circularity.
We are happy to repeat these criticisms but we are hardly the first to raise
23
them. They have been exhaustively developed in Fourth Amendment
scholarship over the last half-century.”).
We would normally be reluctant to voice any such criticism of the
Supreme Court’s jurisprudence, but members of the Court also are critical
of its jurisprudence. In a dissent highly critical of the modern regime,
Justice Thomas recently noted:
Jurists and commentators tasked with deciphering our
jurisprudence have described the Katz regime as “an
unpredictable jumble,” “a mass of contradictions and
obscurities,” “all over the map,” “riddled with inconsistency
and incoherence,” “a series of inconsistent and bizarre results
that [the Court] has left entirely undefended,” “unstable,”
“chameleon-like,” “ ‘notoriously unhelpful,’ ” “a conclusion
rather than a starting point for analysis,” “distressingly
unmanageable,” “a dismal failure,” “flawed to the core,”
“unadorned fiat,” and “inspired by the kind of logic that
produced Rube Goldberg’s bizarre contraptions.” Even
Justice Harlan, four years after penning his concurrence in
Katz, confessed that the test encouraged “the substitution of
words for analysis.” United States v. White, 401 U.S. 745, 786,
91 S. Ct. 1122, 28 L.Ed.2d 453 (1971) (dissenting opinion).
Carpenter, 585 U.S. at ___, 138 S. Ct. at 2244 (alterations in original)
(footnote omitted).
Other Justices share Justice Thomas’s criticism of the Katz regime.
Justice Gorsuch explained Katz was contrary to the text and original
understanding of the Fourth Amendment:
Katz’s problems start with the text and original
understanding of the Fourth Amendment . . . . The
Amendment’s protections do not depend on the breach of
some abstract “expectation of privacy” whose contours are left
to the judicial imagination. Much more concretely, it protects
your “person,” and your “houses, papers, and effects.” Nor
does your right to bring a Fourth Amendment claim depend
on whether a judge happens to agree that your subjective
expectation to privacy is a “reasonable” one. Under its plain
terms, the Amendment grants you the right to invoke its
guarantees whenever one of your protected things (your
person, your house, your papers, or your effects) is
unreasonably searched or seized. Period.
24
Carpenter, 585 U.S. at ___, 138 S. Ct. at 2264 (Gorsuch, J., dissenting).
In fact, “each of the Justices on the Carpenter Court, including those in the
majority and all of the dissenters, has, at some point, either authored or
joined an opinion critical of Katz, or at least conceding the difficulty of
applying it[].” Nicholas A. Kahn-Fogel, Katz, Carpenter, and Classical
Conservatism, 29 Cornell J.L. & Pub. Pol’y 95, 106 (2019).
E.
“Fourth Amendment jurisprudence is in flux . . . .” Everett v. State,
186 A.3d 1224, 1235 (Del. 2018). There are competing, inconsistent
doctrines governing seizure and search law—the original meaning, the
“touchstone” of reasonableness, and the “lodestar” of Katz. Given the
uncertainty and lack of clarity in federal search and seizure jurisprudence,
we conclude it is no longer tenable to follow federal precedents in lockstep.
Article I, section 8, as originally understood, was meant to provide the
same protections as the Fourth Amendment, as originally understood, but
the Supreme Court’s interpretation and construction of the Fourth
Amendment has deviated from the text and original meaning. Respectful
consideration of the Supreme Court’s precedents does not require
adherence to federal doctrine that members of that great Court, other
jurists, and commentators all acknowledge departs from the text and
original meaning of the constitutional prohibition against unreasonable
seizures and searches.
As discussed above, a survey of the relevant text, history, and
precedents shows article I, section 8’s prohibition against unreasonable
searches and seizures was tied to common law trespass. In light of that
understanding, we hold a peace officer engaged in general criminal
investigation acts unreasonably under article I, section 8 when the peace
officer commits a trespass against a citizen’s house, papers, or effects
25
without first obtaining a warrant based “on probable cause, supported by
oath or affirmation, particularly describing the place to be searched, and
the persons and things to be seized.” Iowa Const. art. I, § 8.5
IV.
We now directly address Wright’s claim that Officer Heinz violated
his state constitutional right under article I, section 8. Wright has two
separate and distinct bases for challenging the warrantless seizures and
searches. First, relying on the common law understanding of seizure and
search law, Wright argues Heinz physically trespassed on Wright’s
property and thus the warrantless search violated article I, section 8.
Second, relying on the expectation-of-privacy approach to seizure and
search law, Wright argues Heinz violated article I, section 8 by invading
Wright’s expectation of privacy in his garbage bags. It is the State’s burden
5The dissents are directed at monsters of their own making. The dissenters argue
that the court’s holding—that “if a private citizen can’t do it, the police can’t do it either”—
is not supported by text or history. Except that is not what we hold. We hold that article
I, section 8 prohibits an officer engaged in general criminal investigation from conducting
a search or seizure that constitutes a trespass on a person’s house, papers, or effects
without first obtaining a warrant.
None of the dissenters disagree that article I, section 8, as originally understood,
prohibited warrantless trespassory searches and seizures. The dissenters fail to
recognize that what constitutes a trespass can change over time without changing the
original meaning of article I, section 8. See Phillips v. Wash. Legal Found., 524 U.S. 156,
164, 118 S. Ct. 1925, 1930 (1998) (“[T]he existence of a property interest is determined
by reference to ‘existing rules or understandings that stem from an independent source
such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92
S. Ct. 2701, 2709 (1972))); Orin S. Kerr, The Curious History of Fourth Amendment
Searches, 2012 Sup. Ct. Rev. 67, 93 (2012) [hereinafter Kerr] (“Changes in trespass law
could be recognized as changing the scope of protections without truly changing the
Fourth Amendment . . . .”). Thus, one of the dissenting justices errs in arguing that
scavenging through a citizen’s trash cannot constitute a trespass because scavenging
was common at the time of the founding. The dissenter confuses original meaning with
original expected application. The original meaning of article I, section 8 was to prohibit
an officer engaged in general criminal investigation from committing a trespass against a
citizen’s person, house, papers, and effects without first obtaining a warrant. While
scavenging may have been allowed then, Iowa law disallows it now. The scope of what
constitutes a trespass has changed, not the meaning of article I, section 8. See Phillips,
524 U.S. at 164, 118 S. Ct. at 1930; Kerr, 2012 Sup. Ct. Rev. at 93.
26
to prove that a warrantless search or seizure is constitutional. See Ingram,
914 N.W.2d at 824 (Mansfield, J., concurring specially).
A.
We first consider whether Heinz’s conduct amounted to a seizure or
search within the meaning of article I, section 8. There is no evidence
these terms were terms of art at the time of the founding. See Carpenter,
585 U.S. at ___, 138 S. Ct. at 2238 (Thomas, J., dissenting) (stating the
word “search” “was probably not a term of art, as it does not appear in
legal dictionaries from the era”). “No literal or mechanical approach should
be adopted in determining what may constitute a search and seizure.”
State v. Raymond, 258 Iowa 1339, 1347, 142 N.W.2d 444, 449 (1966). We
thus give the words their fair and ordinary meaning.
It is apparent Heinz seized the garbage bags and papers and effects
contained therein under any fair and ordinary definition of the term
seizure. “A ‘seizure’ of property occurs when there is some meaningful
interference” with the property. United States v. Jacobsen, 466 U.S. 109,
113, 104 S. Ct. 1652, 1656 (1984). In Pomroy & Co., we concluded a
sheriff unlawfully seized a trunk and the contents contained therein when
the sheriff took possession of the items and transported them from one
county to another. See 9 Iowa at 144–47. In Ward, we concluded a
constable unlawfully seized a pharmacist’s liquor when the constable took
possession of the liquor. See 75 Iowa at 639–40, 36 N.W. at 766–67. As
in those cases, Heinz meaningfully interfered with and “seized” the garbage
bags and papers and effects contained therein when he removed the
garbage bags from Wright’s trash bins, took possession of them, and
transported them to the police station for further inspection. See Torres,
592 U.S. at ___, 141 S. Ct. at 995 (“It is true that, when speaking of
property, ‘[f]rom the time of the founding to the present, the word “seizure”
27
has meant a “taking possession.” ’ ” (alteration in original) (quoting
California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 1549 (1991))).
It is equally apparent Heinz engaged in a search when he opened the
garbage bags and rummaged through them. “When the Fourth
Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or
through for the purpose of finding something; to explore; to examine by
inspection; as, to search the house for a book; to search the wood for a
thief.’ ” Kyllo v. United States, 533 U.S. 27, 32 n.1, 121 S. Ct. 2038, 2042
n.1 (2001) (alteration in original) (emphases omitted) (quoting N. Webster,
An American Dictionary of the English Language 66 (1828) (reprint 6th ed.
1989)); see also Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238(summarizing founding era definitions). Historical legal dictionaries
defined a search as an examination “with a view to the discovery of
contraband or illicit or stolen property, or some evidence of guilt to be used
in the prosecution of a criminal action for some crime or offense with which
he is charged,” Henry Campbell Black, A Dictionary of Law 1069 (1st ed.
1891), or an examination conducted for the “purpose of discovering proof
of his guilt in relation to some crime or misdemeanor of which he is
accused.” 2 John Bouvier, A Law Dictionary 498 (3d ed. 1848). Here,
Heinz testified he opened the garbage to “obtain information about what
Mr. Wright may have been doing inside [his] house” and obtain evidence
“related to drug activity.” A constitutional search occurs whenever the
government commits a physical trespass against property, even where de
minimis, conjoined with “an attempt to find something or to obtain
information.” Jones, 565 U.S. at 408 n.5, 132 S. Ct. at 951 n.5; see also
Jardines, 569 U.S. at 5, 133 S. Ct. at 1414 (“When ‘the Government
obtains information by physically intruding’ on persons, houses, papers,
or effects, ‘a “search” within the original meaning of the Fourth
28
Amendment’ has ‘undoubtedly occurred.’ ” (quoting Jones, 565 U.S. at 406
n.3, 132 S. Ct. at 950 n.3)).
For the purposes of determining whether a seizure or search
occurred, it is not relevant whether Wright had an expectation of privacy
in the garbage bags or the contents.
The Katz test distorts the original meaning of
“searc[h]”—the word in the Fourth Amendment that it
purports to define. Under the Katz test, the government
conducts a search anytime it violates someone’s “reasonable
expectation of privacy.” That is not a normal definition of the
word “search.”
Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238 (alteration in original)
(citations omitted). To bring greater coherence to our seizure and search
jurisprudence, we hold the expectation-of-privacy test is relevant only to
the question of whether a seizure or search was unreasonable within the
meaning of article I, section 8 and not whether a seizure or search has
occurred. See Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469, 477
(1998) (Scalia, J., concurring) (explaining that when Katz is applied “to
determine whether a ‘search or seizure’ within the meaning of the
Constitution has occurred (as opposed to whether that ‘search or seizure’
is an ‘unreasonable’ one), it has no plausible foundation in the text of the
Fourth Amendment” (emphasis omitted)).
B.
We next address whether the items Heinz seized and searched were
protected papers and effects within the meaning of article I, section 8.
The word papers is self-explanatory, but the word effects requires
some explanation. The modern understanding of the term effects is
“[m]ovable property; goods.” Effects, Black’s Law Dictionary (11th ed.
2019). This is consistent with the original understanding. “The Framers
would have understood the term ‘effects’ to be limited to personal, rather
29
than real, property.” Oliver v. United States, 466 U.S. 170, 177 n.7, 104
S. Ct. 1735, 1740 n.7 (1984).
We have little trouble concluding the property at issue is protected
within the meaning of article I, section 8. Opaque garbage bags are
containers, and containers are an “effect” as originally understood. See
United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982).
The fact that the containers happen to be garbage bags rather than, say,
expensive luggage, is not of constitutional consequence. See id. There is
no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.”
Id. “Even though such a distinction perhaps could evolve in a series of
cases in which paper bags, locked trunks, lunch buckets, and orange
crates were placed on one side of the line or the other, the central purpose
of the Fourth Amendment forecloses such a distinction.” Id. (footnote
omitted). In addition, Heinz opened the garbage bags and searched
through the contents. The contents included other personal property,
including two pieces of mail addressed to Wright. Letters are certainly
papers. Further, “[l]etters . . . are in the general class of effects,” and
“warrantless searches of such effects are presumptively unreasonable.”
Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.
C.
Heinz’s seizure and search of the papers and effects would be
inconsequential if the papers and effects did not belong to Wright. Article
I, section 8 provides that people have the right to be secure in “their”
persons, houses, papers, and effects. “Although phrased in the plural,
‘[t]he obvious meaning of [“their”] is that each person has the right to be
secure against unreasonable searches and seizures in his own person,
house, papers, and effects.’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at
30
2241–42 (alterations in original) (quoting Carter, 525 U.S. at 92, 119 S. Ct.
at 475).
The State contends the papers and effects Heinz seized were not
Wright’s papers and effects because Wright abandoned them. Under Iowa
law, “[a]bandonment is shown by proof that the owner intends to abandon
the property and has voluntarily relinquished all right, title and interest in
the property.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406
(Iowa 1995) (en banc) (emphasis added). “Abandonment, however, entails
a relinquishment of ownership interests without regard for who becomes
the next owner, such that the items in question can be considered ‘bona
vacantia’—a property law term meaning ‘unowned’—and available for the
taking by any finder.” Tanner M. Russo, Note, Garbage Pulls Under the
Physical Trespass Test, 105 Va. L. Rev. 1217, 1246–47 (2019) [hereinafter
Russo] (footnote omitted).
Here, Wright did not abandon all right, title, and interest in the
property. Local ordinances provide only a licensed collector under
contract with the city may collect garbage. See Clear Lake, Iowa, Code of
Ordinances § 106.11. The ordinances make it “unlawful for any person to
. . . [t]ake or collect any solid waste which has been placed out for
collection on any premises, unless such person is an authorized solid
waste collector.” Id. § 105.11(4). In moving his trash to the alley for
collection, Wright agreed only to convey his property to a licensed collector.
See People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (en banc) (stating
trash was not abandoned except “as to persons authorized to remove the
receptacle’s contents, such as trashmen”). Wright would have the right to
retrieve the property prior to collection and the right to exclude all others
from rummaging through his garbage bins prior to collection. See
Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (Gorsuch, J., dissenting) (“I
31
doubt, too, that most people spotting a neighbor rummaging through their
garbage would think they lacked reasonable grounds to confront the
rummager.”). As one commentator explained:
[I]ndividuals who leave garbage on the curb generally do not
expect that anyone will be able to take the discarded items but
rather, per Greenwood, understand themselves as conveying
refuse to a specific party who will function as the next true
owner: the trash collector. This understanding seems
especially clear in localities with anti-rummaging ordinances,
under which all but designated trash collectors are prohibited
from tampering with curbside garbage, such that
unauthorized “finders” would presumably violate the
ordinance by taking possession of garbage. If individuals
placing garbage out for collection do not intend to leave the
items for random “finders,” placing garbage curbside arguably
lacks the requisite “intent to abandon” necessary to qualify as
property abandonment.
Russo, 105 Va. L. Rev. at 1247 (footnotes omitted). Until such time as the
garbage bags were collected by a licensed collector and commingled with
other garbage, Wright had not yet abandoned the property.
D.
We next address whether Heinz’s conduct constituted a trespass
thus making the warrantless search unconstitutional under article I,
section 8. At the time of the founding, trespass was a broad concept that
encompassed far more than physical intrusions into or on real or personal
property. “Trespass, in its largest and most extensive sense, signifie[d] any
transgression or offence against the law of nature, of society, or of the
country in which we live; whether it relate[d] to a man’s person, or his
property.” 3 William Blackstone, Commentaries on the Laws of England
208 (1768). Within the meaning of article I, section 8, an officer acts
unreasonably when, without a warrant, the officer physically trespasses
on protected property or uses means or methods of general criminal
investigation that are unlawful, tortious, or otherwise prohibited. See
32
Baude & Stern, 129 Harv. L. Rev. at 1825–26 (“[A] court should ask
whether government officials have engaged in an investigative act that
would be unlawful for a similarly situated private actor to perform. That
is, stripped of official authority, has the government actor done something
that would be tortious, criminal, or otherwise a violation of some legal
duty? Fourth Amendment protection, in other words, is warranted when
government officials either violate generally applicable law or avail
themselves of a governmental exemption from it.”). Otherwise prohibited
conduct includes means and methods of general criminal investigation
that violate a citizen’s reasonable expectation of privacy as articulated in
our cases adopting the Katz standard.
In determining whether an officer’s conduct is unlawful, tortious, or
otherwise prohibited, we do not rely on our personal biases, predilections,
or normative judgments concerning the proper scope of law enforcement
authority. Instead, we try “to discern and describe existing societal
norms.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 2265. One way to
discern existing societal norms is to look to “democratically legitimate
sources of [positive] law”—statutes, rules, regulations, orders, ordinances,
judicial decisions, etc. Id. at ___, 138 S. Ct. at 2268 (quoting Todd E.
Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 127
(2011)); see also Planned Parenthood of the Heartland, 915 N.W.2d at 248
(“Statutes do not serve as constitutional definitions but provide us the
most reliable indicator of community standards to gauge the evolving views
of society important to our analysis.” (quoting Griffin v. Pate, 884 N.W.2d
182, 198 (Iowa 2016))).
1.
We turn to the question of whether Heinz physically trespassed on
Wright’s papers and effects. “[A]lmost every human activity ultimately
33
manifests itself in waste products . . . .” Smith v. State, 510 P.2d 793, 798
(Alaska 1973). Urbanization and advances in public sanitation practice
necessitate regular, coordinated, and public trash collection and disposal.
Many municipalities in Iowa have ordinances regulating the collection and
disposal of trash. Clear Lake is one such municipality. The city limits
who may access and collect solid waste to licensed and contracted
collectors. See Clear Lake, Iowa, Code of Ordinances § 106.11. The city
makes it “unlawful for any person to . . . [t]ake or collect any solid waste
which has been placed out for collection on any premises, unless such
person is an authorized solid waste collector.” Id. § 105.11(4). Violation
of any ordinance is punishable by a fine. See id. § 1.15.
Clear Lake is not the only municipality that prohibits any person,
other than an authorized collector, from taking or collecting trash placed
out for collection. See Ankeny, Iowa, Code of Ordinances § 110.11(3)
(2008); Clinton, Iowa, Code of Ordinances § 50.11(D) (2009); Coralville,
Iowa, Code of Ordinances § 105.11(4) (2011); Earlham, Iowa, Code of
Ordinances § 105.10(4) (2017); Manchester, Iowa, Code of Ordinances
§ 105.10(4) (2017); Nevada, Iowa, Code of Ordinances § 105.10(4) (2006);
North Liberty, Iowa, Code of Ordinances § 105.11(4) (2018); Pella, Iowa,
Code of Ordinances § 105.12(4) (2011); Pleasant Hill, Iowa, Code of
Ordinances § 105.12(3) (1998); Prairie City, Iowa, Code of Ordinances
§ 105.11(4) (2012); Sergeant Bluff, Iowa, Code of Ordinances § 105.11(4)
(2011); Urbandale, Iowa, Code of Ordinances § 57.11(D) (2015); Walcott,
Iowa, Code of Ordinances § 105.11(4) (2012).
As the Clear Lake and other ordinances demonstrate, Heinz engaged
in means and methods of general criminal investigation with respect to
these papers and effects that were unlawful and prohibited. See McClurg,
123 Iowa at 371–72, 98 N.W. at 882 (“The mere fact that a man is an
34
officer, whether of high or low degree, gives him no more right than is
possessed by the ordinary private citizen to . . . search for the evidences of
crime, without a legal warrant procured for that purpose.”); see also
Caniglia v. Strom, 593 U.S. ___, ___, 141 S. Ct. 1596, 1599 (2021) (“And,
of course, officers may generally take actions that ‘any private citizen might
do’ without fear of liability.” (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at
1416)). Heinz’s warrantless seizures and searches were thus an unlawful
and unconstitutional physical trespass on Wright’s papers and effects.
See Jardines, 569 U.S. at 8, 133 S. Ct. at 1416; Davis v. Passman, 442
U.S. 228, 246, 99 S. Ct. 2264, 2277–78 (1979) (“No man in this country is
so high that he is above the law. No officer of the law may set that law at
defiance with impunity. All officers of the government, from the highest to
the lowest, are creatures of the law, and are bound to obey it.” (quoting
Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2910 (1978))); Baude
& Stern, 129 Harv. L. Rev. at 1882 (stating where municipal ordinances
require trash collection by a licensed collector and prohibit unauthorized
persons from tampering with trash, the ordinances “should bring with
them the protection of the Fourth Amendment”).
Of course, this is not to say article I, section 8 rises and falls based
on a particular municipal law. Municipal laws, like all positive laws, are
merely one form of evidence of the limits of a peace officer’s authority to
act without a warrant. Further, “while positive law may help establish a
person’s Fourth Amendment interest there may be some circumstances
where positive law cannot be used to defeat it.” Carpenter, 585 U.S. at ___,
138 S. Ct. at 2270. For example, neither the legislature nor a municipality
could “pass laws declaring your house or papers to be your property except
to the extent the police wish to search them without cause.” Id. at 2270–
71. Article I, section 8 precludes a peace officer from engaging in general
35
criminal investigation that constitutes a trespass against a citizen’s house,
papers, or effects. No department of the government can circumvent this
constitutional minimum.
2.
Although we have already concluded the seizures and searches at
issue were unconstitutional physical trespasses on Wright’s papers and
effects, we address whether Heinz’s conduct violated article I, section 8
because it violated a reasonable expectation of privacy. On this point, we
do not write on a blank slate.
The Supreme Court applied the expectation-of-privacy test to
address the constitutionality of the searches and seizures of garbage bags
in California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988). There,
the Supreme Court held the Fourth Amendment does not “prohibit[] the
warrantless search and seizure of garbage left for collection outside the
curtilage of a home.” Id. at 37, 108 S. Ct. at 1627. The Court explained
that “[a]n expectation of privacy does not give rise to Fourth Amendment
protection . . . unless society is prepared to accept that expectation as
objectively reasonable.” Id. at 39–40, 108 S. Ct. at 1628. The Court
reasoned an expectation of privacy in garbage bags left outside the
curtilage of a home was not objectively reasonable: “It is common
knowledge that plastic garbage bags left on or at the side of a public street
are readily accessible to animals, children, scavengers, snoops, and other
members of the public.” Id. at 40, 108 S. Ct. at 1628–29 (footnotes
omitted). In addition, “respondents placed their refuse at the curb for the
express purpose of conveying it to a third party, the trash collector, who
might himself have sorted through respondents’ trash or permitted others,
such as the police, to do so.” Id. at 40, 108 S. Ct. at 1629.
36
In State v. Henderson, the Iowa Court of Appeals concluded the
warrantless search and seizure of the garbage left outside the defendant’s
home under markedly similar facts as Greenwood did not violate the Fourth
Amendment or article I, section 8. See 435 N.W.2d 394, 395–97 (Iowa Ct.
App. 1988); see also State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App.
2001) (declining to depart from the holdings in Greenwood and Henderson
under article I, section 8 of the Iowa Constitution). The court of appeals
relied on the Supreme Court’s rationale in Greenwood and “determine[d]
the use of evidence obtained by searching the defendant’s garbage did not
intrude upon his legitimate expectation of privacy and therefore, was
properly considered by the magistrate in issuing a search warrant of the
defendant’s premises.” Henderson, 435 N.W.2d at 397.
More recently, Justice Gorsuch called the application of Katz in
Greenwood “unbelievable,” explaining:
In that case, the Court said that the homeowners forfeited
their privacy interests because “[i]t is common knowledge that
plastic garbage bags left on or at the side of a public street are
readily accessible to animals, children, scavengers, snoops,
and other members of the public.” But the habits of raccoons
don’t prove much about the habits of the country. I doubt,
too, that most people spotting a neighbor rummaging through
their garbage would think they lacked reasonable grounds to
confront the rummager. Making the decision all the stranger,
California state law expressly protected a homeowner’s
property rights in discarded trash. Yet rather than defer to
that as evidence of the people’s habits and reasonable
expectations of privacy, the Court substituted its own curious
judgment.
Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (alteration in original)
(citations omitted) (quoting Greenwood, 486 U.S. at 40, 108 S. Ct. at 1628–
29).
We believe Justice Gorsuch has the better of the argument here.
Garbage contains intimate and private details of life. See Greenwood, 486
37
U.S. at 50, 108 S. Ct. at 1634 (Brennan, J., dissenting). When a citizen
places garbage out for collection in a closed garbage bag, the contents of
the bag are private, as a factual matter. The citizen understands, however,
that the contents of the bag may be revealed to someone at some point in
time. That a citizen may actually lose privacy in certain things or in certain
information at some point in the future does not preclude the possibility
that a peace officer nonetheless violated the citizen’s right to privacy in
accessing the same things or information. “Privacy rights do not protect a
reasonable expectation that privacy will be maintained, but rather a
reasonable expectation that privacy will not be lost in certain ways.”
Jeffrey M. Skopek, Untangling Privacy: Losses Versus Violations, 105 Iowa
L. Rev. 2169, 2174 (2020). As one noted scholar explained:
Selective secrecy and partial confidentiality are wholly
conceivable and not, despite the superficial allure of the
argument to the contrary, internally inconsistent. Not to allow
an individual to sacrifice a portion of her secrecy interest, or
to suspend confidentiality vis-a-vis specific individuals and
not others, without surrendering all claims to fourth
amendment privacy, makes little sense.
James J. Tomkovicz, Beyond Secrecy for Secrecy’s Sake: Toward an
Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings
L.J. 645, 681 (1985).
Here, Wright had an expectation based on positive law that his
privacy, as a factual matter, would be lost, if at all, only in a certain, limited
way. Specifically, Wright had an expectation based on positive law that
his garbage bags would be accessed only by a licensed collector under
contract with the city. See Clear Lake, Iowa, Code of Ordinances § 106.11.
Wright had an expectation based on positive law that it would be unlawful
for others to access his trash. See id. § 105.11(4); see also Rakas v. Illinois,
439 U.S. 128, 143 n.12, 99 S. Ct. 421, 430 n.12 (1978) (“Legitimation of
38
expectations of privacy by law must have a source outside of the Fourth
Amendment, either by reference to concepts of real or personal property
law or to understandings that are recognized and permitted by society.”).
“[T]he mere fact that a citizen elects to dispose of his garbage in the
customary way by making it available for pickup by a municipal or
privately-retained hauler is no basis for concluding that his expectation of
privacy as to that garbage is unjustified.” 1 LaFave § 2.6(c), at 933. Heinz
violated that expectation and right when he accessed the contents without
a warrant.
We thus join those courts that have held a warrantless search of a
citizen’s trash left out for collection is unlawful. See Edwards, 458 P.2d
at 718 (pre-Greenwood decision holding that police search of trash cans
in the back of defendant’s residence was unlawful because defendant had
a justified expectation of privacy in his garbage); State v. Goss, 834 A.2d
316, 319 (N.H. 2003) (rejecting Greenwood under New Hampshire
Constitution, concluding that defendant’s expectation of privacy was
reasonable, and construing state constitution to provide greater protection
than the Federal Constitution); State v. Hempele, 576 A.2d 793, 813–15
(N.J. 1990) (rejecting Greenwood under New Jersey state constitutional
law and holding that “the State must secure a warrant based on probable
cause in order to search garbage bags left on the curb for collection”); State
v. Crane, 254 P.3d 117, 123 (N.M. Ct. App. 2011) (finding defendant had
reasonable expectation of privacy in garbage under New Mexico
Constitution), aff’d on other grounds, 329 P.3d 689 (N.M. 2014); State v.
Morris, 680 A.2d 90, 96 (Vt. 1996) (rejecting Greenwood under Vermont
Constitution, finding that “[t]he Vermont Constitution does not require the
residents of this state to employ extraordinary or unlawful means to keep
government authorities from examining discarded private effects”); State
39
v. Boland, 800 P.2d 1112, 1116–17 (Wash. 1990) (en banc) (rejecting
Greenwood under Washington Constitution and focusing its analysis on
whether the private affairs of an individual were unreasonably violated).
E.
The State contends Heinz’s conduct here was justified for practical
reasons. The State contends that holding Heinz’s conduct violated the
constitution “would result in the demise of trash grabs of personal trash
containers.” We do not question the utility of warrantless trash grabs for
the purposes of law enforcement, but the utility of warrantless activity is
not the issue under our constitution. The “mere fact that law enforcement
may be made more efficient can never by itself justify disregard of the
[constitution].” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414
(1978). Obviously, “investigation of crime would always be simplified if
warrants were unnecessary.” Id.[T]he Constitution [is not] a public enemy whom judges are
charged to disarm whenever possible. It is the protector of the
people, placed on guard by them to save the rights of the
people against injury . . . . To hold that attack upon it is for
the public good is to commend the soldier for tearing down the
rampart which enables him to sleep in safety.
Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 272, 154 N.W. 1037, 1047
(1915).
V.
We hold Officer Heinz conducted an unreasonable search and
seizure in violation of article I, section 8 of the Iowa Constitution when he
acted without a search warrant and removed opaque trash bags from
waste bins set out for collection behind a residence, took possession of the
trash bags, transported them to a different location, opened the bags, and
searched through the contents. Accordingly, we conditionally affirm
Wright’s convictions and remand this matter for further proceedings. On
40
remand, the district court shall hold a hearing on the defendant’s motion
to suppress evidence without consideration of the evidence and
information obtained during the trash pulls used to support the warrant
application. See State v. Veal, 930 N.W.2d 319, 340 (Iowa 2019)
(conditionally affirming conviction and remanding for further proceedings
in light of decision); State v. Lilly, 930 N.W.2d 293, 309 (Iowa 2019) (same).
The district court shall conduct further proceedings as necessary
contingent upon its ruling on the defendant’s motion to suppress evidence.
AFFIRMED ON CONDITION AND REMANDED WITH
DIRECTIONS.
Oxley and McDermott, JJ., join this opinion, and Appel, J., joins as
to divisions I, IV(B)–(E), and V. Appel, J., files a special concurrence.
Christensen, C.J., files a dissenting opinion, in which Waterman and
Mansfield, JJ., join. Waterman, J., files a dissenting opinion, in which
Christensen, C.J., and Mansfield, J., join. Mansfield, J., files a dissenting
opinion, in which Christensen, C.J., and Waterman, J., join.
41
#19–0180, State v. Wright
APPEL, Justice (concurring specially).
In this case, I join divisions I, IV(B), IV(C), IV(D), IV(E), and V of the
court’s opinion. In particular, I agree with Justice McDonald’s general
assertions regarding the fundamental importance of search and seizure
law to our form of government. I also agree that we are not bound by the
recent rights-restricting precedents of the United States Supreme Court in
the area of search and seizure or other constitutional provisions. I further
agree with Justice McDonald that the reasonableness clause does not
encompass the radical pragmatism offered in the dissenting opinions.
And, I agree that a trespass occurred in this case, that the property was
not abandoned, and that, as a result, a warrant was required under
article I, section 8 of the Iowa Constitution. In the alternative, the actions
of the officers violated reasonable expectations of privacy, thereby
triggering the protections of article I, section 8 of the Iowa Constitution.
But I disagree with aspects of Justice McDonald’s opinion. Although
I have a healthy respect for constitutional history and have explored it in
some depth in the search and seizure context, see, e.g., State v. Ochoa,
792 N.W.2d 260, 264–87 (Iowa 2010), I am not what is generally loosely
referred to as an originalist. The law is never static. It always evolves.
And the founders certainly believed that to be the case.
And, in the context of search and seizure, Justice Brandeis got it
right in his ultimately adopted dissent in Olmstead v. United States, when
he urged the Court to view constitutional law as more than simple
historical application of common law traditions in light of modern
innovations like the telephone. 277 U.S. 438, 472–76, 48 S. Ct. 564, 570–
71 (1928) (Brandeis, J., dissenting). It makes no sense to try to figure out
what the founders would have thought about eavesdropping, a heat-
42
measuring device that penetrates the home, or a GPS device slapped onto
a vehicle. Instead, our task is to identify the larger constitutional
principles at stake, trace their evolution through decades of experience,
and apply them in the present context based on contemporary realities.
Finally, as I have stated many times, the best reading of the
relationship between the reasonability clause and the warrant clause in
both article I, section 8 of the Iowa Constitution and the Fourth
Amendment to the United States Constitution is the warrant-preference
approach that appeared for decades in the United States Supreme Court
cases until abandoned by modern pragmatists. The touchstone of the
Fourth Amendment generally is not the reasonableness clause, but
instead, is the warrant clause. The general rule, absent certain narrow
and well-recognized exceptions, is that before law enforcement may engage
in search or seizure of a person, papers, or effects, a warrant must be
obtained describing with particularity the basis for probable cause, the
person or places to be searched, and the scope of the search.
Here are some details.
I. The Critical Role of Search and Seizure Law in Maintaining a
Democratic Government.
Although often forgotten or simply ignored, the controversy involving
search and seizure was at the heart of the American Revolution. The raw
power of the government to engage in general searches and seizures was
not a footnote to history but was a chapter title. Although modern radical
pragmatists have forgotten it, the use of writs of assistance and general
warrants were absolute anathema to the Revolutionary generation.
General searches were recognized as opening the door to abuses, and
abuses there were.
43
Of course, arbitrary search and seizure dragged innocent people
through the wringer. But there was also larger harm that arose from the
general authority to search and seize. General authority to search not only
has the potential to harass the population generally, but it permits the
government to act in an unequal and arbitrary manner against groups or
types of persons. General authority to search and seize permits
government authorities to focus the powerful machinery of law
enforcement on political opponents, as in Wilkes v. Wood (1763) 98 Eng.
Rep. 489, or upon some other element of the population that is disfavored
or deemed suspicious. The need to cabin such arbitrary action gave rise
to the warrant requirement in which the government is required to show
probable cause and as history developed, obtain a warrant from a neutral
magistrate.
More recently, the events of the 1930s in central Europe reinforced
for all the importance of limitations on the government’s search and
seizure powers. These events had a particular impact on Justice Robert
Jackson, who served as chief prosecutor at Nuremberg, and Justice Felix
Frankfurter, born in Austria and of Jewish lineage. They recognized that
a government that is free to conduct searches and seizures at any time of
day or night for any reason, including political beliefs or ethnic
characteristics, is an authoritarian government.
There is an ample supply of court opinions emphasizing the role of
search and seizure limitations. Justice McDonald cites some of them.
There are many others. Early on, we recognized that the search and
seizure limitations of the Iowa Constitution were to be approached “in a
broad and liberal spirit.” State v. Height, 117 Iowa 650, 657, 91 N.W. 935,
937 (1902). In its first major Fourth Amendment case, the United States
Supreme Court urged “constitutional provisions for the security of person
44
and property should be liberally construed,” cautioned that
unconstitutional practices arise from “slight deviations from legal modes
of procedure,” and observed that “[i]t is the duty of courts to be watchful
for the constitutional rights of the citizen, and against any stealthy
encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635, 6
S. Ct. 524, 535 (1886). And traditional search and seizure cases
emphasize that concerns about efficiency cannot defeat search and seizure
protections. Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414
(1978) (“[T]he mere fact that law enforcement may be made more efficient
can never by itself justify disregard of [constitutional search and seizure
requirements].”).
But what is striking is not the cornucopia of powerful expressions
of the role of search and seizure limitations, but their absence in the
dissenting opinions, and unfortunately, in many of the recent rights-
restricting search and seizure decisions of the United States Supreme
Court and this court. The term Justice Stevens used for this phenomenon
is “constitutional amnesia.” United States v. Leon, 468 U.S. 897, 972, 104
S. Ct. 3430, 3452 (1984) (Stevens, J., dissenting). But without a general
understanding of the purpose of a constitutional provision and its
historical roots, a judicial opinion becomes a color matching race to the
finish without context and substance.
II. Authority to Depart from Federal Precedent.6
Although in the early years the federal government was regarded as
something of an irrelevant backwater compared to sophisticated and
experienced state governments, in recent years, there seems to be a
6For more expansive views on the subject see State v. Short, 51 N.W.2d 474, 481–
95 (Iowa 2014); State v. Baldon, 829 N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially
concurring); and Ochoa, 792 N.W.2d at 264–67.
45
fascination, in some quarters, of all things federal. Fascination with
federal court constitutional limitations. Fascination with federal rules.
Fascination with the federal doctrine on just about anything, regardless of
context. Law students flock to the federal courts class and avoid the
course on state and local government.
This fascination with all things federal by state courts would have
certainly left the founding generation speechless, if not breathless. The
very purpose of the federal system was to preserve the autonomy of the
states, with the federal government playing a limited role in national
political life. Not only was uniformity between state and federal
government not desired, the structure of the government was intentionally
designed to prevent it by giving states wide autonomy over most aspects
of public life. The proposition that state supreme courts should generally
follow precedent of the United States Supreme Court would not have
commanded support at the United States Constitutional Convention7 and
was clearly condemned by the Iowa constitutional generation’s reaction to
federal caselaw regarding slavery at the Iowa Constitutional Convention of
1857 and in the general assembly’s response to the Dred Scott v. Sandford,
60 U.S. (19 How.) 393 (1857), decision issued shortly after the convention
adjourned.8
7United States Constitutional Convention delegate “Oliver Ellsworth, who would
one day become Chief Justice of the United States Supreme Court, declared that ‘he
turned his eyes’ to the state governments ‘for the preservation of his rights.’ ” Paul
Finkelman & Stephen E. Gottlieb, Introduction to Toward a Usable Past: Liberty Under
State Constitutions 1, 4 (Paul Finkelman & Stephen E. Gottlieb eds., 1991).
8At the Iowa Constitutional Convention of 1857 it was widely recognized that
provisions of the Iowa Constitution conflicted with decisions of federal courts. That did
not bother the members of the convention. Regarding the possibility of conflict between
the right to counsel provision and judicial holdings under the Federal Fugitive Slave Act,
James F. Wilson noted, “Gentlemen may say that it will bring about a conflict between
the courts of the United States and the courts of this State. Let that conflict come . . . .”
2 The Debates of the Constitutional Convention of the State of Iowa 739 (W. Blair Lord rep.,
1857), https://www.statelibraryofiowa.org/services/collections/law-library/iaconst.
46
There is only one reason to follow federal precedent on a matter of
state law, namely, when it is persuasive on the merits, period. Ochoa, 792
N.W.2d at 267. We look to the quality of the reasoning, not the pedigree
of the court, in considering the impact of caselaw from other jurisdictions.
Id.
Some may view it desirable to tip the scales of Iowa caselaw in the
direction of the recent rights-restricting cases of the United States
Supreme Court. Upon this view, the dramatic recent rights-restricting
trends in the federal caselaw may be imported into Iowa law. By giving a
preference or presumption to federal law generally, one can dramatically
move state law in an across-the-board, rights-restricting direction. A
federal rights-restricting thumb is placed on the scale of all state
constitutional cases. As noted by Professor Adrian Vermeule, such an
approach amounts to “a ‘precommitment device’ that prevents a state
supreme court from considering each case based on an independent
examination of facts and law.” State v. Short, 851 N.W.2d 474, 487 (Iowa
2014) (quoting Adrian Vermeule, The Judicial Power in the State (and
Federal) Courts, 2000 Sup. Ct. Rev. 357, 366).
But we have a constitutional responsibility to think for ourselves.
Our famous civil rights cases were not clones of federal court precedent.
Similarly, George Ells, a leading figure at the convention, told delegates, “I regard the
Fugitive Slave Law as unconstitutional, because it does not give to man the right to defend
his life and liberty by ‘due process of law.’ ” 1 id. at 101. He later told the convention, “If
the words ‘due process of law,’ shall in time be recognized by our judicial tribunals to
mean what they really do mean, . . . [t]hen, sir, that infamous Fugitive Slave Law will
become a nullity, and the American people will trample its odious enactments in the
dust.” Id. at 102. These views, of course, were completely contrary to the pro-slavery-
dominated United States Supreme Court. Compare id. at 101–02, and 2 id. at 739, with
Dred Scott, 60 U.S. (19 How.) at 404, 452–53, superseded by constitutional amendment,
U.S. Const. Amend. XIII. The Iowa General Assembly wasted no time responding to Dred
Scott, declaring that it was obligated to “promptly and sternly denounce this new doctrine,
which if established, degrades the free States.” 1858 Iowa Acts Res. 12, at 433.
47
When the United States Supreme Court decided Plessy v. Ferguson, 163
U.S. 537, 16 S. Ct. 1138 (1896), we did not scamper back from our rights-
affirming rulings in Clark v. Board of Directors, 24 Iowa 266 (1868), and
Coger v. Northwestern Union Packet Co., 37 Iowa 145 (1873), as a chastised
inferior tribunal. This court has not been, and should not aspire to be,
the United States Court of Appeals for the Twelfth Circuit.
The second reason for cutting and pasting federal precedent into
state caselaw, rarely articulated but often at work, is efficiency. State
courts are, of course, overburdened, and the resources available to the
average state court judge, in Iowa and in many states, pales in comparison
to the federal judiciary. The parties’ briefings on state constitutional
issues are often less than thorough. It is easy to simply grab a flying
federal case asteroid, drop the smoldering object into our opinion book,
close it quickly to cut off any legal oxygen that might cause a flare-up, and
go home for supper. But the Iowa courts are an independent state
judiciary operating under an independent state constitution.
From an analytical perspective, these issues are well settled. There
is a large scholarship supporting these views which we have canvassed in
some detail. See Short, 851 N.W.2d at 481–95; State v. Baldon, 829
N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially concurring); Ochoa,
792 N.W.2d at 264–67. Writing in 1998, a leading authority declared that
“the legitimacy of rel[ying] on state constitutional guarantees . . . has
largely been put to rest.” G. Alan Tarr, Understanding State Constitutions
169 (1998). A recent book by Judge Jeff Sutton demolished the argument
that state courts should simply follow federal law. Jeffrey S. Sutton, 51
Imperfect Solutions: States and the Making of American Constitutional Law
(2018). Yet, at least some of our recent cases in my view tend to follow
federal caselaw uncritically as if it were some kind of special authority.
48
See, e.g., State v. McGee, ___ N.W.2d ___, ___ (Iowa 2021); State v. Warren,
955 N.W.2d 848, 859 (Iowa 2021); State v. Brown, 930 N.W.2d 840, 846–
47 (Iowa 2019). “Old habits die hard.” A.E. Dick Howard, Introduction to
Developments in State Constitutional Law XI, XXII (Bradley D. McGraw ed.,
1985).
III. Departure from Federal Precedent.
Having demonstrated our independent authority, I now briefly
review what I regard as the unsatisfactory approach to search and seizure
matters by the United States Supreme Court. In my view, more than a few
of them are off the mark. Until very recently, the Supreme Court has
tended to embrace rights-restricting radical pragmatism, where the
perceived needs of law enforcement are consistently permitted to
overwhelm the libertarian principles behind search and seizure law. I offer
a nonexclusive parade of examples to illustrate my point.
In United States v. Leon, the Supreme Court discovered a “good-
faith” exception to the exclusionary rule for search and seizure cases. 468
U.S. at 920–21, 104 S. Ct. at 3419 (majority opinion). The decision
promised to undermine enforcement of search and seizure protections in
federal courts. In State v. Cline, we rejected the good-faith exception as
developed in Leon. 617 N.W.2d 277, 288–93 (Iowa 2000) (en banc). We
found that in Iowa the exclusionary rule was not only designed to deter
police misconduct but also to provide a remedy for constitutional
violations and to ensure the integrity of our state courts by refusing to
admit into the record illegally obtained evidence. Id. at 289–90. A majority
of state courts that have considered Leon have also rejected it,9 leading
9See Short, 851 N.W.2d at 503 (citing cases).
49
commentators to speculate that perhaps the United States Supreme Court
would overrule Leon.
In Samson v. California, the United States Supreme Court departed
from its prior precedent by creating a categorical exception that permitted
warrantless searches of parolees. 547 U.S. 843, 850–57, 126 S. Ct. 2193,
2198–2202 (2006). The new Fourth Amendment doctrine dramatically
and substantially undercut the traditional warrant requirement, probable
cause, and particularity requirements of search and seizure law. See
Short, 851 N.W.2d at 500. This departure from past precedent was
contrary to State v. Cullison, where we held that a parolee did not
surrender search and seizure protections. 173 N.W.2d 533, 537, 539–40
(Iowa 1970). In Cullison, we rejected pragmatic arguments to undermine
traditional search and seizure law as “socio-juristic rationalization.” Id. at
536. A leading Fourth Amendment scholar, Wayne LaFave, found Samson
unpersuasive, noting its use of a general reasonability analysis “especially
troublesome.” See 5 Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment § 10.10, at 541 (6th ed. 2020). We agreed, stating
that “[w]e bristle at the replacement of a regime of individualized suspicion
with broad categorical judgments when general law enforcement searches
of the home are involved.” Ochoa, 792 N.W.2d at 289.
In Schneckloth v. Bustamonte, the United States Supreme Court
developed a multifactor test to determine whether a person consents to a
search. 412 U.S. 218, 227, 93 S. Ct. 2041, 2048 (1973). Schneckloth does
not require the state to show a knowing and voluntary waiver of search
and seizure rights under Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023 (1938), but instead permits consideration of factors not related
to the consent issue at all, which does not make any sense except to permit
searches or seizures that are not knowing and voluntary and not
50
supported by a warrant. And, how do you meaningfully consent to waiving
a right that you are not aware you have? In Schneckloth, the naked
assertion was made that providing explicit warnings would be “thoroughly
impractical.” 412 U.S. at 231, 93 S. Ct. at 2050. Subsequent practice,
however, shows that not to be the case at all. See Matthew Phillips, Note,
Effective Warnings Before Consent Searches: Practical, Necessary, and
Desirable, 45 Am. Crim. L. Rev. 1185, 1197–1206 (2008) (citing New Jersey
requirement of giving warnings in any routine traffic stop prior to seeking
consent to search). Although we have not explicitly required that a police
officer inform a person of his or her right to decline to provide consent, we
have stated that the failure to make such a disclosure is an important fact
in the “consent” analysis. State v. Pals, 805 N.W.2d 767, 783 (2011).
The result in Atwater v. City of Lago Vista is something of a shocker.
532 U.S. 318, 354–55, 121 S. Ct. 1536, 1557–58 (2001). There, a mother
driving with her two young children was arrested and jailed after a traffic
offense where no jail time could be imposed. Id. at 323–24, 121 S. Ct. at
1541–42. How can that be? Justice O’Connor’s dissent in Atwater has
been widely praised and should be read and reread by those seriously
concerned about search and seizure law. Id. at 361, 121 S. Ct. at 1536
(O’Connor, J., dissenting). See generally Wayne A. Logan, Reasonableness
as a Rule: A Paean to Justice O’Connor’s Dissent in Atwater v. City of Lago
Vista, 79 Miss. L.J. 115 (2009) (praising Justice O’Connor’s dissent “for its
steadfast fidelity to Fourth Amendment reasonableness and its astute
recognition of the personal and jurisprudential consequences of its
abandonment”).
The notion that search and seizure protections do not extend to
financial records in the hands of third parties, as declared in United States
v. Miller, 425 U.S. 435, 440–44, 96 S. Ct. 1619, 1622–24 (1976), strikes
51
me as doubtful in the modern context. John Adams kept his financial
records in a roll-top desk on his farm and therefore the records were
protected from unwarranted search. But in modern life, John Adams
would have the very same information in records in a financial institution.
Shouldn’t the identical information stored according to modern practices
be entitled to the same protection? Fortunately, it seems that the United
States Supreme Court is beginning to backtrack on the third-party
doctrine. See Carpenter v. United States, 585 U.S. ___, ___, 138 S. Ct.
2206, 2216–20 (2018). As noted by Justice Sotomayor in United States v.
Jones, it may be time to reconsider Miller. 565 U.S. 400, 417, 132 S. Ct.
945, 957 (2012) (Sotomayor, J., concurring) (noting that the Miller
“approach is ill suited to the digital age, in which people reveal a great deal
of information about themselves to third parties in the course of carrying
out mundane tasks”).
In Whren v. United States, the United States Supreme Court
expressly permitted law enforcement officers to engage in pretextual traffic
stops. 517 U.S. 806, 811–13, 116 S. Ct. 1769, 1773–74 (1996). Whren
failed to recognize, among other things, that discriminatory application of
search and seizure powers of the state was one of the fundamental
purposes of the Fourth Amendment. For me, this was an unwelcome
development of federal search and seizure law that leaked into Iowa law
under the Iowa Constitution. See Brown, 930 N.W.2d at 873–76 (Appel,
J., dissenting).
In New York v. Belton, the United States Supreme Court held that
law enforcement as part of a search incident to arrest could look inside
closed containers as part of a vehicle search. 453 U.S. 454, 459–61, 101
S. Ct. 2860, 2864 (1981). This was so even though the person arrested
did not have access to the container and thus there was no risk of
52
destruction of evidence nor any question of safety of the officers. Id. at
456, 101 S. Ct. at 2862. Many state courts howled. So did we. State v.
Gaskins, 866 N.W.2d 1, 9–13 (Iowa 2015); State v. Vance, 790 N.W.2d 775,
786–90 (Iowa 2010). Justice Scalia noted that the Supreme Court caselaw
assumed that the arrested person had “the skill of Houdini and the
strength of Hercules.” Thornton v. United States, 541 U.S. 615, 626, 124
S. Ct. 2127, 2134 (2004) (Scalia, J., concurring in the judgment) (quoting
United States v. Frick, 490 F.2d 666, 673 (5th Cir. 1973) (Goldberg, J.,
concurring in part and dissenting in part)). Citing state court decisions
refusing to follow Belton, the United States Supreme Court backtracked,
to a large extent, in Arizona v. Gant. 556 U.S. 332, 343, 129 S. Ct. 1710,
1719 (2009). The retreat was certainly stimulated by the growing body of
negative state court response to Belton.
In a line of three cases, the United States Supreme Court reversed
state supreme court decisions extending traditional search and seizure
protections to inventory searches of automobiles, see Colorado v. Bertine,
479 U.S. 367, 376, 107 S. Ct. 738, 743 (1987); Illinois v. Lafayette, 462
U.S. 640, 648–49, 103 S. Ct. 2605, 2611 (1983); South Dakota v.
Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 3100 (1976). In considering
the approach of the United States Supreme Court on inventory searches,
we noted the cumulative impact of its decisions in Whren, Atwater, and
Bertine was to provide law enforcement with “virtually unlimited discretion
to stop arbitrarily whomever they choose, arrest the driver for a minor
offense that might not even be subject to jail penalties, and then obtain a
broad inventory search of the vehicle—all without a warrant.” State v.
Ingram, 914 N.W.2d 794, 814 (Iowa 2018). We noted that “[a]n essentially
unregulated legal framework allowing wide police discretion in stopping,
arresting, and conducting warrantless inventory searches of the driver’s
53
automobile amounts to a general warrant regime that is anathema to
search and seizure law.” Id. at 815.
Finally, there is the evisceration of the warrant requirement in
Mitchell v. Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2535–39 (2019).
Under Mitchell, administrative efficiency now is the driving force behind
the determination of whether the warrant requirement applies. See id.And, as in Samson, the Supreme Court utilized an overbroad categorical
approach to remove cases from the warrant requirement even though it
was not impractical to obtain a warrant. See McGee, ___ N.W.2d at ___
(Appel, J., dissenting).
In sum, as the above cases illustrate, the recent rights-restrictive
cases of the United States Supreme Court have seriously undermined the
traditional protections of search and seizure. If we are to give article I,
section 8 of the Iowa Constitution the “broad and liberal” construction
commanded by our precedent, State v. Height, 117 Iowa at 657, 91 N.W.
at 937, many of the United States Supreme Court cases simply cannot be
relied upon as a sound basis for Iowa constitutional law. There is,
perhaps, some reason to believe that the warrant requirement may be
making a comeback in the United States Supreme Court, at least in some
contexts. See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2216–20. We need
not await these perhaps mercurial strands in a couple of United States
Supreme Court cases, however, but should simply stay the course with
the development of our robust and independent state search and seizure
law.
IV. Benefits of History, but Shortcomings of Originalism.
I also wish to briefly comment on methodology. Historical
understanding of the development of search and seizure law helps inform
our analysis of current problems. In several cases, we canvassed at length
54
the historic origins of search and seizure law. See Baldon, 829 N.W.2d at
803–34; Ochoa, 792 N.W.2d at 269–73.
But while historical inquiry can inform us about the general purpose
of a constitutional provision or about the historic concerns that gave rise
to open-ended constitutional language, it does not provide us, standing
alone, with inevitable answers. History is not granular, and it rarely points
only in one direction. Even if historical truths can be discovered by judges
writing opinions in a matter of weeks (and, alas, sometimes days), the
historical truths are very difficult even for trained historians to discover
and are often inconsistent and contradictory. And, historical cherry-
picking can be a tool to hide preferences and biases behind a veneer of
objectivity. At most, and when best used, history informs and shapes the
inquiry but does not demand results in cases presenting fact situations or
modern technology that the founders could not possibly have anticipated.
In addition to history, consideration must be given to the evolving
precedent interpreting open-ended constitutional provisions and to
contemporary contexts and public attitudes.
We also should avoid search and seizure formalism. While a
trespass may give rise to search and seizure protections, nontrespassory
acts that uncover intimate information may be equally protected from
arbitrary search and seizure. Jones, 565 U.S. at 414, 132 S. Ct. at 954–
55. In other words, the government’s physical intrusion may be important
in some cases, but there are many kinds of surveillance and intrusions
that do not involve trespass that are entitled to protection against
warrantless government invasion. Id. Even without a trespass,
“unrestrained power to assemble data that reveal private aspects of
identity is susceptible to abuse . . . [and] may ‘alter the relationship
between citizen and government in a way that is inimical to democratic
55
society.’ ” Id. at 416, 132 S. Ct. at 956 (quoting United States v. Cuevas-
Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).
Particularly in the area of search and seizure, there have been
technological developments that simply could not have been anticipated
by the founders. History may not be determinative in these contexts, nor
can the formalism of property law, in and of itself, be sufficient. That point
was made by Justice Brandeis in his dissent in Olmstead, 277 U.S. 438,
48 S. Ct. 564, and later embraced by the United States Supreme Court in
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). But even so, it
is clear that the property rights theory which relies, to some extent, on
historical patterns was not entirely abandoned by Katz; but instead, Katz’s
“reasonable expectation of privacy” was grafted onto existing doctrine to
ensure robust search and seizure protections. The Katz “reasonable
expectation of privacy” doctrine, however, seemed to engulf prior concepts
limiting the government’s authority to search and seize. Further, although
Katz was seen at the beginning as a tool to expand search and seizure
protections, narrow interpretations of the pliable term “reasonable” often
produced contrary results. In any event, I regard the protections afforded
by search and seizure law to be expansive and broad enough to include
evolving concepts of property, privacy, and security. See Ochoa, 792
N.W.2d at 276–78 (discussing interest of security as well as property and
privacy in search and seizure law).
V. Constitutionality of Trash Pulls in This Case.
I have little trouble concurring with the result in this case. For the
reasons explained by Justice McDonald, the trash pull was clearly a
search. There are two reasons for this. First, as Justice McDonald
explains, the search was accomplished by trespass. In my view, a trespass
may not be required to offend search and seizure principles, but where a
56
trespass does occur, the government must either get a warrant or be able
to meet its burden of showing an exception to the warrant requirement.
Second, as Justice McDonald also notes, applying the formulation in Katz,
Wright had a legitimate expectation of privacy in his trash. This is a belt-
and-suspenders case.
At this point, then, the warrant requirement becomes applicable
unless there is an exception to it. See, e.g., Ingram, 914 N.W.2d at 816
(“Our recent cases repeatedly embrace what can only be characterized as
a strong warrant preference interpretation of article I, section 8.”); State v.
Coleman, 890 N.W.2d 284, 286 (Iowa 2017) (articulating warrant
preference); Gaskins, 866 N.W.2d at 7 (“ ‘A warrantless search is presumed
unreasonable’ unless an exception applies.” (quoting State v. Moriarty, 566
N.W.2d 866, 868 (Iowa 1997))); Baldon, 829 N.W.2d at 791 (majority
opinion) (“It is well-settled that warrantless searches are virtually ‘per se
unreasonable’ . . . .” (quoting Schneckloth, 412 U.S. at 219, 93 S. Ct. at
2043)); Ochoa, 792 N.W.2d at 269 (“[T]he Reasonableness Clause cannot
be used to override the Warrant Clause.”); State v. Strong, 493 N.W.2d 834,
836 (Iowa 1992) (“Warrantless searches and seizures are by definition
invalid unless they fall under one of the jealously and carefully drawn
exceptions to constitutional warrant requirements.”); State v. Sanders, 312
N.W.2d 534, 538 (Iowa 1981) (“Ordinarily a search and a resulting seizure
of private property ‘must be both reasonable and performed pursuant to a
properly executed warrant.’ ” (quoting State v. Holderness, 301 N.W.2d
733, 736 (Iowa 1981))). No one suggests that such an exception is present
in this case. As a result, I join the court in concluding that the
unwarranted search is unlawful under article I, section 8 of the Iowa
Constitution and the evidence obtained from the search must be
suppressed.
57
#19/0180, State v. Wright
CHRISTENSEN, Chief Justice (dissenting).
I respectfully dissent and join the separate dissents of Justice
Waterman and Justice Mansfield. I would affirm the district court
judgment. The majority buries the lede in waiting until the last portion of
its opinion to announce the most consequential portion of its ruling, which
is that police are apparently now prohibited from utilizing any “means or
methods of general criminal investigation that are unlawful, tortious, or
otherwise prohibited” if those means or methods “would be unlawful for a
similarly situated private actor to perform.” I wish our state law
enforcement officials the best of luck in trying to decipher what methods
of criminal investigation and exceptions to the warrant requirement are
now available to them in light of that conclusion.
In my opinion, the Iowa Constitution does not provide greater
protections than the Fourth Amendment to the United States Constitution
for the warrantless search of garbage set out for collection in a publicly
accessible area such that the defendant had a reasonable expectation of
privacy in his garbage. Additionally, the defendant’s garbage is not a
constitutionally protected “effect” under the Federal and State
Constitutions, so I cannot conclude the officer violated Wright’s search and
seizure protections by retrieving Wright’s garbage.
I. The Parties’ Actual Arguments on Appeal.
Wright’s argument is twofold. First, Wright asks us to interpret
article I, section 8 of the Iowa Constitution to provide greater protections
than the Fourth Amendment in garbage set out for collection in a publicly
accessible area based on his belief that Iowans have an objectively
reasonable expectation of privacy in garbage set out for collection in a
publicly accessible area. Second, Wright maintains Officer Heinz’s
58
warrantless search of the garbage violated the Fourth Amendment to the
United States Constitution and article I, section 8 of the Iowa Constitution
regardless of any privacy expectation because Officer Heinz trespassed on
Wright’s personal “effects” to obtain information.
In the past decade alone, our court has had no shortage of cases
examining whether we should depart from the United States Supreme
Court’s Fourth Amendment precedent to provide Iowans with greater
search and seizure protections under article I, section 8 of the Iowa
Constitution in various contexts. See, e.g., State v. Brown, 930 N.W.2d
840, 846–54 (Iowa 2019); State v. Gaskins, 866 N.W.2d 1, 6–16 (Iowa 2015);
State v. Short, 851 N.W.2d 474, 481–507 (Iowa 2014). In those cases, we
considered an array of nonexclusive factors in deciding whether to depart
from federal precedent, such as the text of the Iowa Constitution; the
history of our state constitutional provision; the structural differences in
the State and Federal Constitutions; related decisions of other states,
especially when interpreting similar constitutional text; and the practical
consequences of departure. See, e.g., Brown, 930 N.W.2d at 846–54
(examining evidence from the debates over the Iowa Constitution, the scope
of our State and Federal Constitutions and relevant precedent involving
them, the practical issues in departing from the Federal Constitution, and
related precedent from other states in declining to depart from the Fourth
Amendment regarding the relevance of an officer’s motivations for stopping
motorists); Gaskins, 866 N.W.2d at 6–16 (same in the context of vehicle
search incident to arrest); Short, 851 N.W.2d at 481–507 (same in the
context of home search of probationer based on reasonable suspicion of
criminal activity). Meanwhile, Wright does not discuss any of those
considerations.
59
Instead, Wright’s argument about privacy expectations relies
exclusively on the City of Clear Lake’s ordinances regulating waste
management. Specifically, Wright’s argument in the section of his brief
advocating for departure from the federal precedent in California v.
Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988), spans the following few
sentences:
Not only was there a trespass on the containers to search for
information, but Appellant, like so many other Iowans across
the state, has an objectively reasonable expectation of privacy
codified by municipal code. It is against the law in Clear Lake,
Iowa for any person to scavenge garbage, which completely
undermines the rationale in Greenwood that garbage is
knowingly exposed to “children, scavengers, snoops and other
members of the public.” Under these ordinances, the contents
of an individual’s garbage inside the container remain private.
Appellant can expect the privacy of his garbage will be
maintained up to the point where the licensed collector
physically takes possession of his garbage bags.
It is important to note what Wright did not argue in his brief. Wright’s
brief never so much as cited Carpenter v. United States, 585 U.S. ___, 138
S. Ct. 2206 (2018), despite the majority’s reliance upon it, let alone argued
that it formed a basis for rejecting Greenwood. Understandably, the State
did not discuss or even cite Carpenter because it was under the impression
that it was fighting the case on other issues. Instead of asking us to
overrule the Iowa precedent following Greenwood, Wright’s brief asks us to
depart from it under the Iowa Constitution based on ordinances regulating
waste management. This is a substantially different argument than asking
us to disregard Greenwood because it is no longer the controlling Supreme
Court precedent on this issue. “[W]e do not create issues or unnecessarily
overturn existing law sua sponte when the parties have not advocated for
such a change.” Feld v. Borkowski, 790 N.W.2d 72, 78 n.4 (Iowa 2010).
60
Nor do we address arguments raised for the first time on appeal, see
State v. Derby, 800 N.W.2d 52, 60 (Iowa 2011), but that is what the majority
does in declaring, “an officer acts unreasonably when, without a warrant,
the officer . . . uses means or methods of general criminal investigation that
are unlawful, tortious, or otherwise prohibited.” Although Wright cites
Clear Lake ordinance 30.08 in his appellate brief, which states, “The Police
Chief shall establish such rules, not in conflict with the Code of
Ordinances, and subject to the approval of the Council, as may be
necessary for the operation of the department,” he never presented this
ordinance or argument in support of his claim before the district court.
Clear Lake, Iowa, Code of Ordinances § 30.08 (2003). Thus, he failed to
preserve it for our review. Derby, 800 N.W.2d at 60. Nonetheless, as I will
discuss later, police have privileges at their disposal to carry out their
duties that ordinary citizens lack. See, e.g., State v. Lloyd, 513 N.W.2d
742, 745 (Iowa 1994) (discussing means police officers have to arrest an
individual that private citizens lack, including the ability of police to engage
“in the dangerous pursuit of other vehicles” that might violate traffic laws).
That Officer Heinz’s actions may have violated or conflicted with a city
ordinance does not automatically render his actions illegal, let alone a
violation of Wright’s constitutional rights.
Although Carpenter was discussed during oral argument through
questioning from members of our court, “we do not consider issues raised
for the first time in oral argument.” Dilley v. City of Des Moines, 247 N.W.2d
187, 195 (Iowa 1976) (en banc); see also Principal Mut. Life Ins. v. Charter
Barclay Hosp., Inc., 81 F.3d 53, 56 (7th Cir. 1996) (noting that it “would
not be quite cricket” to decide a case on a ground that had not been raised
at all before oral argument of the appeal). In any event, Wright’s counsel
was not the one to invoke Carpenter. Rather, Justice Appel precipitated
61
the discussion on this unbriefed argument, and he did so only in
questioning the State. It was clear from the oral argument that the State
was justifiably caught off guard and ill-prepared to address Justice Appel’s
approach, and the State was unfairly deprived of its ability to properly brief
and argue this case due to the majority’s decision to depart from the
arguments presented on appeal. Similarly, Justice McDonald initiated the
discussion on Wright’s unpreserved argument about the ability of police
officers to engage in actions that exceed the ability of private citizens (or in
the words of his majority opinion, the ability of the police to use “means or
methods of general criminal investigation that are unlawful, tortious, or
otherwise prohibited”), and this, too, was only in questioning the State.
Consequently, the majority’s analysis is almost entirely its own without
regard for the parties’ actual arguments.
“[T]he adversary process functions most effectively when we rely on
the initiative of lawyers, rather than the activism of judges, to fashion the
questions for review.” New Jersey v. T.L.O., 468 U.S. 1214, 1216, 104 S.
Ct. 3583, 3585 (1984) (Stevens, J., dissenting) (emphasis added). “Our law
clerks and judges should not be doing the work of counsel . . . . We are not
advocates and should not usurp a party’s strategy.” King v. State, 818
N.W.2d 1, 48 (Iowa 2012) (Wiggins, J., dissenting) (citation omitted); see
also United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996) (noting it
is “not a sound practice” for the court and its law clerks or staff attorneys
to flag issues the defendant could have raised but did not). Luckily for
Wright, his strategy did not matter because the majority was willing to
make the arguments that he did not make. Given the majority’s generosity
and willingness to make arguments not briefed or preserved, I fail to see
how members of the majority can continue to assert in criminal cases that
defendants have “waived” state constitutional arguments on appeal under
62
the rationale that those defendants did not cite authority or adequately
brief the issue. See State v. Gibbs, 941 N.W.2d 888, 902 (Iowa 2020)
(McDonald, J., concurring specially in the judgment, joined by Oxley, J.)
(“In this case, Gibbs waived his argument arising under the Iowa
Constitution. The entirety of the defendant’s argument in support of his
state constitutional claim is two sentences. . . . While Gibbs identified a
state constitutional claim, he did not make more than a perfunctory
argument in support of the state constitutional claim, and he did not cite
any authority in support of his state constitutional claim. Gibbs’s
perfunctory argument without citation to any authority constitutes waiver
of his state constitutional claim.”).
The public has criticized this court for reaching out and
deciding issues not raised or briefed on appeal. This is another
case for the critics to add to their list. We cannot have a rule
of law that we reach out and decide an issue not briefed or
pressed by the parties on appeal in order to achieve a desired
result.
King, 818 N.W.2d at 48.
Nevertheless, even if the majority was correct in concluding Wright
properly argued that Carpenter forms the basis for rejecting Greenwood, I
would still affirm the district court’s suppression ruling and Wright’s
subsequent conviction on the merits for the reasons discussed below.
II. The District Court’s Ruling Should be Affirmed Under
Existing Iowa and Federal Precedent.
The majority departs from federal decisions and overturns Iowa
caselaw adopting those decisions based on various United States Supreme
Court Justices’ dissenting or concurring opinions. Perhaps the more
recent shift in the makeup of the Supreme Court over the past few years
now favors overturning Greenwood, abandoning the Katz test, and
recognizing constitutional protections for garbage placed in a publicly
63
accessible area for collection. But, “each of the Justices on the Carpenter
Court, including those in the majority and all of the dissenters, has, at
some point, either authored or joined an opinion critical of Katz, or at least
conceding the difficulty of applying it[],” yet Katz still served as the
foundation for the Court’s decision in Carpenter. Nicholas A. Kahn-Fogel,
Katz, Carpenter, and Classical Conservatism, 29 Cornell J.L. & Pub. Pol’y
95, 106 (2019). “[N]otwithstanding Justice Thomas’s protestations and
Justice Gorsuch’s doubts, the Katz standard is, for now, alive and well,” as
is Greenwood, and it is not for us to decide that is no longer the case simply
because we think another approach is “better.” Id. at 97 (footnote omitted).
A. The Expectation of Privacy in Garbage Set Out for Collection
in a Publicly Accessible Area. The Fourth Amendment to the United
States Constitution protects individuals from “unreasonable searches and
seizures” of their “persons, houses, papers, and effects.” U.S. Const.
amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause . . . .”);
see also United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 949
(2012). Similarly, article I, section 8 of the Iowa Constitution protects
persons against “unreasonable seizures and searches” of “their persons,
houses, papers and effects.” Iowa Const. art. I, § 8 (“The right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable seizures and searches shall not be violated; and no warrant
shall issue but on probable cause . . . .”). “We generally ‘interpret the scope
and purpose of the Iowa Constitution’s search and seizure provisions to
track with federal interpretations of the Fourth Amendment’ ” due to their
almost identical language while remaining cognizant of our duty to
64
interpret the Iowa Constitution independently. Brown, 930 N.W.2d at 847
(quoting State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008)).
Although we have not addressed the constitutionality of a
warrantless search or seizure of garbage left for collection in a publicly
accessible area, both the United States Supreme Court and the Iowa Court
of Appeals have done so under similar facts as this case. In Greenwood, a
police investigator received information that the respondent might be
engaged in narcotics trafficking, so the investigator asked the
neighborhood’s regular trash collector to pick up the garbage bags that the
respondent had left on the curb in front of his home and turn them over to
her. 486 U.S. at 37, 108 S. Ct. at 1627. The investigator searched
through the garbage bags, found items in the bags indicative of narcotics
use, and used the information she gleaned from the garbage search to
support her application for a search warrant of the respondent’s home that
led to the respondent’s arrest on felony charges. Id. at 37–38, 108 S. Ct.
at 1627–28.
The Supreme Court held the Fourth Amendment did not prohibit the
warrantless search and seizure of garbage left for collection outside the
curtilage of a home because “society would not accept as reasonable
respondents’ claim to an expectation of privacy in trash left for collection
in an area accessible to the public.” Id. at 41, 108 S. Ct. at 1629. The
Court explained, “It is common knowledge that plastic garbage bags left on
or at the side of a public street are readily accessible to animals, children,
scavengers, snoops, and other members of the public.” Id. at 40, 108 S. Ct.
at 1628–29 (footnotes omitted). Further, the Court noted the respondent
had placed his garbage “at the curb for the express purpose of conveying it
to a third party, the trash collector, who might himself have sorted through”
it or given it to others to sort. Id. at 40, 108 S. Ct. at 1629. Therefore, the
65
Court reasoned, he could not have any reasonable expectation of privacy
in the garbage left for collection because he had deposited it “in an area
particularly suited for public inspection and, in a manner of speaking,
public consumption, for the express purpose of having strangers take it.”
Id. at 40–41, 108 S. Ct. at 1629 (quoting United States v. Reicherter, 647
F.2d 397, 399 (3d. Cir. 1981)). Finally, the Court declared that “the police
cannot reasonably be expected to avert their eyes from evidence of criminal
activity that could have been observed by any member of the public,” as
the Fourth Amendment does not protect such activity that a person
knowingly exposes to the public. Id. at 41, 108 S. Ct. at 1629.
Similarly, in State v. Henderson, the Iowa Court of Appeals concluded
the warrantless search and seizure of garbage left outside the defendant’s
home under markedly similar facts as Greenwood did not violate the Fourth
Amendment to the United States Constitution or article I, section 8 of the
Iowa Constitution. 435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988); see also
State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App. 2001) (declining to
depart from the holdings in Greenwood and Henderson under article I,
section 8 of the Iowa Constitution). The court of appeals relied on the
Supreme Court’s rationale, agreeing with the Supreme Court that there
was no societal understanding that garbage left for collection in an area
accessible to the public deserved “scrupulous protection from government
invasion.” Henderson, 435 N.W.2d at 396 (quoting Oliver v. United States,
466 U.S. 170, 178, 104 S. Ct. 1735, 1741 (1984)). Consequently, the court
of appeals “determine[d] the use of evidence obtained by searching the
defendant’s garbage did not intrude upon his legitimate expectation of
privacy and therefore, was properly considered by the magistrate in issuing
a search warrant of the defendant’s premises.” Id. at 397.
66
In those cases, both the Supreme Court and the court of appeals
based their conclusions on the reasonable-expectation-of-privacy test
originally derived from Justice Harlan’s concurrence in Katz v. United
States, which declared that the Fourth Amendment only protects a person’s
“reasonable expectation of privacy.” 389 U.S. 347, 360, 88 S. Ct. 507, 516
(1967) (Harlan, J., concurring); see also Oliver, 466 U.S. at 182–83, 104
S. Ct. at 1743 (“[T]he correct inquiry [of whether government action violates
the Fourth Amendment] is whether the government’s intrusion infringes
upon the personal and societal values protected by the Fourth
Amendment.”); Greenwood, 486 U.S. at 39, 108 S. Ct. at 1628 (citing Oliver
v. United States and Justice Harlan’s Katz concurrence for the proposition
that a warrantless search and seizure of garbage left outside for collection
would only violate the Fourth Amendment “if respondents manifested a
subjective expectation of privacy in their garbage that society accepts as
objectively reasonable”); Henderson, 435 N.W.2d at 396 (noting the test to
determine whether a government action intrudes upon a person’s
legitimate expectation of privacy is “whether the government’s intrusion
infringes upon the personal and societal values protected by the fourth
amendment” (quoting State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (en
banc))). Under this analysis, Wright must show he had a subjective
expectation of privacy in the contents of the garbage he left out for
collection and this expectation of privacy was reasonable. See State v.
Brooks, 888 N.W.2d 406, 411 (Iowa 2016).
Our court has continued to use this analysis as part of our two-step
approach to determine whether there has been a violation of article I,
section 8 of the Iowa Constitution, which requires the defendant to
demonstrate a legitimate expectation of privacy in the area searched before
we can examine whether the search violated the defendant’s rights. See,
67
e.g., id. Wright now asks us to depart from those holdings and interpret
article I, section 8 of the Iowa Constitution to require greater protection
than the Fourth Amendment to the United States Constitution.
Particularly, Wright maintains Iowans have an objectively reasonable
expectation of privacy in their garbage set out for collection in a publicly
accessible area.
In his motion to suppress, Wright relied on chapters 105 and 106 of
the City of Clear Lake ordinances, which govern solid waste control and the
collection of solid waste, to support his argument that Iowans have a
reasonable expectation of privacy in the garbage they set out for collection
in a publicly accessible area. Wright notes these ordinances prohibit
anyone from scavenging who is not “an authorized solid waste collector,”
and establish that only solid waste collectors contracted with the city have
authority to collect garbage from residential premises. See Clear Lake,
Iowa, Code of Ordinances § 105.11(4); id. § 106.07. Accordingly, Wright
maintains he, “like so many other Iowans across the state, has an
objectively reasonable expectation of privacy codified by municipal code”
by which he “can expect the privacy of his garbage will be maintained up
to the point where the licensed collector physically takes possession of his
garbage bags.” I disagree.
While city ordinances may codify societal expectations of privacy in
some circumstances, the definitive purpose of the ordinances Wright relies
on has nothing to do with privacy. Rather, as Clear Lake, Iowa, Code of
Ordinances section 105.01 proclaims,
The purpose of the chapters in this Code of Ordinances
pertaining to Solid Waste Control and Collection is to provide
for the sanitary storage, collection and disposal of solid waste
and, thereby, to protect the citizens of the City from such
hazards to their health, safety and welfare as may result from
the uncontrolled disposal of solid waste.
68
Thus, I have no doubt that the intent of this ordinance was to establish a
waste management and sanitation system to promote public health and
cleanliness. The majority expands this purpose by judicial fiat in order to
establish an expectation of privacy where there is none in ordinance
chapters focused on public hygiene. We should not “read something into
the law that is not apparent from the words chosen by the” city council.
State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017) (quoting State v. Iowa
Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)).
Moreover, Wright’s notion that Iowans have a reasonable expectation
of privacy in garbage that was left out for collection simply because a city
ordinance prohibits scavenging or establishes waste collection procedures
“is totally unrealistic, unreasonable, and in complete disregard of the
mechanics of its disposal.” United States v. Shelby, 573 F.2d 971, 973 (7th
Cir. 1978), cert denied, 439 U.S. 841, 99 S. Ct. 132 (1978) (affirming the
constitutionality of a warrantless search of defendant’s trash that he placed
in the garbage for collection under the Fourth Amendment). The removal
of garbage by a waste collection provider who could immediately turn the
garbage over to the police is no different than removal of the garbage by the
police themselves. Either way, Wright’s privacy expectation was the same
when he placed his garbage out for collection because he expressly did so
to convey it to a third party who could just as easily have sorted through it
“or permitted others, such as the police, to do so” without any input from
Wright. Greenwood, 486 U.S. at 40, 108 S. Ct. at 1629. Nothing in the
record suggests Clear Lake’s contracted waste collection providers or
sanitation department had any responsibility to protect the privacy of
Wright’s garbage, let alone “to help him dispose of the evidence of his
crimes.” Shelby, 573 F.2d at 973.
69
“[S]ociety’s experience with trash left at the alley or curb for
collection” demonstrates there is no objective expectation of privacy in the
contents of that trash. State v. A Blue in Color, 1993 Chevrolet Pickup, 116
P.3d 800, 804–05 (Mont. 2005). Organizations like Iowa Legal Aid warn
individuals that “[d]umpster diving” is a method of identity theft and
encourage Iowans to “[s]hred financial documents and paperwork with
personal information before you put them in the trash” as a way to protect
against identity theft. Iowa Legal Aid, Identity Theft (Mar. 30,
2011), https://www.iowalegalaid.org/resource/identity-theft-2
[https://perma.cc/7HDD-HJX7]. As the Delaware Superior Court stated
in holding no warrant was required to search garbage,
The media is replete with warnings to people not to put
personal items in their trash such as bills, receipts, mailers
from credit card companies, etc., which can be converted to
forged credit cards, etc. Some of the media coverage and much
advertising is not only to warn people not to do so but to
instead shred such documents. This regrettable phenomenon
over the last few years clearly emphasizes that reasonable
people must or should have a lessened expectation of privacy
in their trash. To put it differently, the expectation of privacy
is no longer reasonable in this situation.
State v. Ranken, 25 A.3d 845, 860 (Del. Super. Ct. 2010), aff’d sub nom.
Ranken v. State, No. 718, 2010, 2011 WL 2089603, at *1 (Del. May 24,
2011) (“[T]he final judgment of the Superior Court should be affirmed on
the basis of and for the reasons assigned by the Superior Court . . . .”).
The conclusion that the city’s ordinances regulating waste
management do not create an objectively reasonable expectation of privacy
is supported by a plethora of other states that have similarly examined the
impact of city ordinances regulating waste management on the privacy
interests of garbage set out for collection.10 For instance, the
10See, e.g., Rikard v. State, 123 S.W.3d 114, 120–21 (Ark. 2003) (rejecting
appellants’ claim that city ordinances regulating waste management and prohibiting
70
Massachusetts Supreme Judicial Court rejected a defendant’s claim that
an “ordinance allow[ing] only licensed trash collectors to transport garbage”
established a reasonable expectation of privacy in garbage. Commonwealth
v. Pratt, 555 N.E.2d 559, 567 (Mass. 1990). It reasoned that “licensed
collectors may have rummaged through the defendant’s garbage
themselves” and “once the defendant knew that the garbage would be
picked up by licensed collectors and deposited at the local landfill, he
should have known that others could gain access to the garbage.” Id.The Arkansas Supreme Court rejected a defendant’s claim that city
ordinances prohibiting scavenging and disturbing the contents of
containers established a reasonable expectation of privacy in garbage.
Rikard v. State, 123 S.W.3d 114, 121 (Ark. 2003). It explained,
Without question, the Jonesboro city ordinances were not
created to provide citizens with an expectation of privacy in
their garbage. Rather, the intent of the ordinance undoubtedly
scavenging gave them a reasonable expectation of privacy in their garbage under the
Arkansas Constitution); State v. DeFusco, 620 A.2d 746, 752 n.17 (Conn. 1993) (rejecting
defendant’s argument that an ordinance prohibiting scavenging created a reasonable
expectation of privacy in garbage left at the curb for collection); State v. Schultz, 388 So.
2d 1326, 1327 (Fla. Dist. Ct. App. 1980) (holding a defendant did not have a reasonable
expectation of privacy in garbage that he left in the area in front of his home for collection
in accordance with the city ordinances governing garbage collection); Commonwealth v.
Pratt, 555 N.E.2d 559, 567 (Mass. 1990) (rejecting defendant’s claim that ordinances
regulating waste management establish a reasonable expectation of privacy); State v.
McMurray, 860 N.W.2d 686, 693–94 (Minn. 2015) (criticizing the dissent’s argument that
county ordinances regulating waste management require greater search and seizure
protections for garbage under the Minnesota Constitution than the United States
Constitution); State v. Brown, 484 N.E.2d 215, 218 (Ohio Ct. App. 1984) (per curiam)
(noting a municipal ordinance regulating waste collection did not establish a reasonable
expectation of privacy in garbage because the purpose of the ordinance was to promote
efficient garbage removal); Commonwealth v. Minton, 432 A.2d 212, 216–17 (Pa. Super.
Ct. 1981) (holding a township code prohibiting people other than the occupant from
removing garbage container covers did not provide the garbage container owner with a
reasonable expectation of privacy because the purpose of the code was for sanitation, not
privacy); State v. Stevens, 734 N.W.2d 344, 347–48 (S.D. 2007) (explaining city
ordinances regulating waste management “do not manifest [societal expectations of
privacy] simply because they dictate how persons are to place their trash for collection or
how the trash is to be collected,” especially because the city ordinances the defendant
cited were enacted for sanitation purposes).
71
was to provide a city-wide system for waste management and
sanitation services, with an emphasis on cleanliness and
preventing any scattering of that garbage.
Id. The United States Supreme Court rejected a comparable argument in
Greenwood “that [Greenwood’s] expectation of privacy in his garbage
should be deemed reasonable as a matter of federal constitutional law
because the warrantless search and seizure of his garbage was
impermissible as a matter of California law.” 486 U.S. at 43, 108 S. Ct. at
1630.
In addition to the lack of an objectively reasonable expectation of
privacy in this case, there is scant evidence that Wright even knew of the
ordinances regulating scavenging or garbage collection to support his
argument that he maintained a subjective expectation of privacy. Even if
Wright was aware of the ordinances he cites, he still discarded his garbage
“in an area particularly suited for public inspection and, in a manner of
speaking, public consumption, for the express purpose of having strangers
take it.” Id. at 40–41, 108 S. Ct. at 1629 (quoting Reicherter, 647 F.2d at
399). He did not even place lids on his garbage cans.
If Wright wanted to ensure the contents of his garbage were private
as not to be seen by anyone, then his decision to place them at the edge of
the public alley without so much as a lid to cover them is illogical. Even if
no other humans went through Wright’s garbage, he was still exposing it
to the possibility that it would be visible to anyone—including law
enforcement—by placing it there. For example, a gust of wind could knock
Wright’s garbage cans over, exposing his garbage bags “to the predations
of dogs and raccoons” and the possibility of his garbage being “found
strewn across streets and alleyways.” A Blue in Color, 1993 Chevrolet
Pickup, 116 P.3d at 804–05. “[I]t is inconceivable that [he] intended to
72
retain a privacy interest in the discarded objects.” Reicherter, 647 F.2d at
399.
In Abel v. United States, the Supreme Court held a defendant
“abandoned” personal property items when he threw them away in the
hotel room garbage can and vacated the room, thereby giving the hotel the
“exclusive right to its possession” and to permit law enforcement to search
the wastebasket without a warrant. 362 U.S. 217, 241, 80 S. Ct. 683, 698
(1960). When questioned about the relevance of the abandonment theory
to this case at oral argument, Wright maintained the Supreme Court in
Greenwood—which it decided after Abel—rejected the argument that the
respondent was not entitled to an expectation of privacy because he
abandoned his property and any corresponding privacy interests in it when
he discarded it and placed it curbside for collection. Fundamentally, the
Supreme Court “never expressly, nor impliedly for that matter, rejected the
abandonment theory” in Greenwood, and “[t]ry as one might, no one is able
to point to a single passage in the Greenwood majority opinion that
suggests otherwise.” United States v. Redmon, 138 F.3d 1109, 1119 (7th
Cir. 1998) (Coffey, J., concurring). Justice Brennan’s dissent in Greenwood
proclaimed the majority “reject[ed] the State’s attempt to distinguish trash
searches from other searches on the theory that trash is abandoned.”
Greenwood, 486 U.S. at 51, 108 S. Ct. at 1634 (Brennan, J., dissenting).
Yet, Justice Brennan also criticized the majority for “rel[ying] heavily” on
lower court cases—the majority of which “rely entirely or almost entirely on
an abandonment theory”—as support for its holding that there is no
reasonable expectation of privacy in discarded garbage. Id. at 49 n.2, 108
S. Ct. at 1633 n.2.
Although the Supreme Court did not explicitly mention
“abandonment” in Greenwood, its analysis was couched in abandonment
73
language. It emphasized that there could be no reasonable expectation of
privacy in “discarded” items a person places in garbage left “in an area
particularly suited for public inspection and, in a manner of speaking,
public consumption, for the express purpose of having strangers take it.”
Id. at 40–41, 108 S. Ct. at 1629 (majority opinion) (emphasis added)
(second quoting Reicherter, 647 F.2d at 399). In doing so, it quoted and
cited various state and federal cases that relied on the abandonment
doctrine to determine the Fourth Amendment did not protect garbage left
for collection in a publicly accessible area. Id. at 40–42, 108 S. Ct. at 1629–
30 (citing cases). Therefore, Wright’s abandonment of the garbage in this
case is relevant to the analysis.
“Property is abandoned when the owner no longer wants to possess
it.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995)
(en banc). Wright’s decision to place his garbage bags in the garbage cans
at the edge of the public alley “for hauling to a public dump signifies
abandonment.” Shelby, 573 F.2d at 973. Though he apparently “decided
to assume the risk, calculating no one would think to search in his garbage
can[s], or he may have been careless, . . . he evidenced an intent in a
convenient but risky way to permanently disassociate himself from the
incriminating contents.” Id.By placing his garbage bags at the edge of the public alley for
disposal, Wright was essentially “proclaiming to all the world that ‘I’m
through with this stuff; come and get it.’ ” Commonwealth v. Ousley, 393
S.W.3d 15, 34–35 (Ky. 2013) (Cunningham, J., concurring in result).
Wright did not even care to put the lids on his garbage cans, let alone try
to use any more secure method—like a padlock or “private property” sign,
for example—to keep people out of his garbage. Ultimately, a person’s
discarded garbage does not change constitutional dimensions based on
74
who is searching through it. When Wright discarded his garbage, he
abandoned his interest in it, along with any Fourth Amendment or article
I, section 8 protections in the process. See, e.g., United States v. Thomas,
864 F.2d 843, 845 (D.C. Cir. 1989) (“When individuals voluntarily abandon
property, they forfeit any expectation of privacy in it that they might have
had.” (quoting United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.
1983))); Reicherter, 647 F.2d at 399 (“[T]he placing of trash in garbage cans
at a time and place for anticipated collection by public employees for
hauling to a public dump signifies abandonment.” (alteration in original)
(quoting Shelby, 573 F.2d at 973)); United States v. Vahalik, 606 F.2d 99,
101 (5th Cir. 1979) (per curiam) (“[T]he act of placing garbage for collection
is an act of abandonment which terminates any [F]ourth [A]mendment
protection . . . .”).
The city’s ordinance prohibiting scavenging recognizes this concept
of garbage as abandoned property. In Iowa, an individual cannot be
convicted of theft for taking abandoned objects because theft requires
“[t]ak[ing] possession or control of the property of another, or property in
the possession of another, with the intent to deprive the other thereof.”
Iowa Code § 714.1(1) (2017). Wright relinquished any interest in the
contents of his garbage when he discarded it at the edge of the public alley
for waste collection. There can be no intent to deprive Wright of objects he
already abandoned, and “[a]bandoned property belongs to the finder of the
property against all others, including the former owner.” Benjamin, 534
N.W.2d at 406.
The majority’s conclusion that the city’s antiscavenging ordinance
establishes the city’s intent to protect the property and corresponding
privacy interests of its residents renders the antiscavenging ordinance
redundant and unnecessary. The Iowa Code already criminalizes the theft
75
of property through its theft statute as at least a simple misdemeanor
offense depending upon the monetary value of the property. See Iowa Code
§ 714.2(5) (classifying the lowest degree of theft as a simple misdemeanor).
At the time of Officer Heinz’s garbage pull, simple misdemeanor theft
offenders were subject to fines as high as $625 and “imprisonment not to
exceed thirty days” for simple misdemeanor theft. Iowa Code § 903.1(1)(a).
Because a person who takes the property of another is already
subject to criminal prosecution for theft, there would be no need for an
additional ordinance prohibiting scavenging if the city were simply trying
to protect a property interest in garbage. As I noted earlier, this is also
clear from the city’s purpose statement governing the antiscavenging
ordinance, which asserts the purpose of the ordinance is “to protect the
citizens of the City from such hazards to their health, safety and welfare as
may result from the uncontrolled disposal of solid waste.” Clear Lake, Iowa,
Code of Ordinances § 105.01. An ordinance enacted to promote public
hygiene does not establish an objectively reasonable expectation of privacy
in garbage.
Overall, I would conclude the existence of city ordinances in Iowa
regulating waste management does not require us to provide greater
protections under article I, section 8 of the Iowa Constitution against the
warrantless search of garbage set out for collection in a publicly accessible
area. Thus, I would review Wright’s privacy expectations in accordance
with Greenwood. Wright abandoned the garbage at issue at the edge of a
public alley outside his home anticipating the waste collector would take
it, but any member of the public—including the police—could have
accessed his garbage. As the Supreme Court held in Greenwood, a person
does not have an objectively reasonable expectation of privacy in garbage
left for collection in a publicly accessible area. This holding is supported
76
by the overwhelming majority of state courts that have examined this issue
under the United States Constitution or their respective state
constitutions.11 For these reasons, I believe the district court correctly
11See, e.g., State v. Fassler, 503 P.2d 807, 813–14 (Ariz. 1972) (en banc) (holding
law enforcement’s search of the garbage can located in an alleyway at the premises where
defendant was arrested did not violate the Fourth Amendment because the defendant
surrendered his privacy in the garbage’s contents by placing them in the publicly
accessible garbage can); Rikard, 123 S.W.3d at 120–21 (rejecting appellants’ claim that
city ordinances regulating waste management and prohibiting scavenging gave them a
reasonable expectation of privacy in their garbage under the Arkansas Constitution);
People v. Hillman, 834 P.2d 1271, 1277–78 (Colo. 1992) (en banc) (upholding law
enforcement’s search of defendant’s garbage because defendant “did not have a
reasonable expectation of privacy in his garbage when he placed his garbage adjacent to
the sidewalk, rendering it readily accessible to the public”); DeFusco, 620 A.2d at 752
n.17 (rejecting defendant’s argument that an ordinance prohibiting scavenging created a
reasonable expectation of privacy in garbage left at the curb for collection); Ranken, 25
A.3d at 859–60 (holding the Delaware Constitution’s search and seizure provision did not
protect a trash container left curbside on a public sidewalk because the defendant’s
expectation of privacy in the trash was not objectively reasonable); Schultz, 388 So. 2d at
1327 (holding a defendant did not have a reasonable expectation of privacy in garbage
that he left in the area in front of his home for collection in accordance with the city
ordinances governing garbage collection); Scott v. State, 606 S.E.2d 312, 315 (Ga. Ct.
App. 2004) (upholding law enforcement’s search of defendant’s garbage left out for
collection because the defendant abandoned the contents of the garbage by placing them
out for collection and thus had no reasonable expectation of privacy in them); State v.
Donato, 20 P.3d 5, 10 (Idaho 2001) (holding the Idaho Constitution does not provide
greater protection to privacy rights in garbage than the United States Constitution and
no objectively reasonable expectation of privacy exists in garbage left out for collection
because it “is knowingly exposed to public view”); People v. Stage, 785 N.E.2d 550, 552
(Ill. App. Ct. 2003) (affirming “[t]he long-standing precedent in Illinois . . . that an
individual has no reasonable expectation of privacy protection in his garbage”); State v.
Alexander, 981 P.2d 761, 766–67 (Kan. Ct. App. 1999) (holding law enforcement’s search
of defendant’s garbage was lawful because defendant had no reasonable expectation of
privacy in garbage placed in a dumpster outside by the publicly accessible curb); State v.
Rando, 848 So. 2d 19, 23 n.3 (La. Ct. App. 2003) (holding the search of defendant’s
garbage was reasonable based on the United States Supreme Court’s holding in
Greenwood that “persons have no reasonable expectation of privacy in garbage”); State v.
Sampson, 765 A.2d 629, 636 (Md. 2001) (holding the Fourth Amendment does not protect
“trash [that] is placed for collection at a place that is readily accessible, and thus exposed,
to the public, [because] the person has relinquished any reasonable expectation of
privacy” in that trash); Pratt, 555 N.E.2d at 567 (holding law enforcement’s search of a
trash bag in front of the defendant’s residence did not violate the defendant’s right against
unreasonable searches and seizures under the Massachusetts Declaration of Rights
because defendant did not have a reasonable expectation of privacy in the contents of his
trash bag); People v. Thivierge, 435 N.W.2d 446, 447 (Mich. Ct. App. 1988) (per curiam)
(declining to provide greater search and seizure protections for garbage under the
Michigan Constitution than the United States Constitution because “the depositing of
garbage on or at the side of a public street . . . negates any reasonable expectation of
77
privacy in inculpatory items secreted therein”); McMurray, 860 N.W.2d at 693–94
(criticizing the dissent’s argument that county ordinances regulating waste management
require greater search and seizure protections for garbage under the Minnesota
Constitution than the United States Constitution); State v. Trahan, 428 N.W.2d 619, 623
(Neb. 1988) (holding that “[g]arbage left for collection at a designated location and
accessible to the public shall not be accorded constitutional protection”); People v. Crump,
1 N.Y.S.3d 866, 867 (App. Div. 2015) (holding law enforcement’s search of defendant’s
curbside garbage can did not violate the Fourth Amendment because “[t]he defendant
had no reasonable expectation of privacy in the refuse he placed at the curb”); State v.
Hauser, 464 S.E.2d 443, 447 (N.C. 1995) (upholding “a warrantless search of garbage by
police, after pickup by the regular collector in the normal manner”); State v. Schmalz, 744
N.W.2d 734, 742 (N.D. 2008) (upholding law enforcement’s warrantless search of
defendant’s garbage because defendant “lost his expectation of privacy when he placed
the trash for collection, and therefore the garbage search falls outside the protections of
Article 1, section 8 of the state constitution and the Fourth Amendment to the federal
constitution”); Brown, 484 N.E.2d at 218 (noting a municipal ordinance regulating waste
collection did not establish a reasonable expectation of privacy because the purpose of
the ordinance was to promote efficient garbage removal); Cooks v. State, 699 P.2d 653,
656 (Okla. Crim. App. 1985) (upholding law enforcement’s warrantless search of
“curbside trash,” “join[ing] those other jurisdictions holding curbside trash is abandoned
property, over which appellant has no reasonable expectation of privacy”); Minton, 432
A.2d at 217 (holding a township code prohibiting people other than the occupant from
removing garbage container covers did not provide the garbage container owner with a
reasonable expectation of privacy because the purpose of the code was for sanitation, not
privacy); State v. Briggs, 756 A.2d 731, 743 (R.I. 2000) (holding defendant had no
objectively reasonable expectation of privacy in the contents of a trash bag after the
defendant placed the bag into the bed of his pickup truck for it to be collected and placed
in the communal dumpster of a multi-dwelling tenement); Stevens, 734 N.W.2d at 347–
48 (explaining city ordinances regulating waste management “do not manifest [societal
expectations of privacy] simply because they dictate how persons are to place their trash
for collection or how the trash is to be collected,” especially because the city ordinances
the defendant cited were enacted for sanitation purposes); Levario v. State, 964 S.W.2d
290, 295–96 (Tex. App. 1997) (holding a warrantless search of defendant’s “discarded
trash” did not constitute an unlawful search and seizure because defendant “had no
reasonable expectation of privacy in discarded trash”); State v. Jackson, 937 P.2d 545,
550 (Utah Ct. App. 1997) (holding that “the Utah Constitution does not prohibit the
warrantless search” of garbage left streetside for collection); Commonwealth v. Bryant,
Record No. 2715–04–1, 2005 WL 1017629, at *2 (Va. Ct. App. May 3, 2005) (holding the
trial court erred in suppressing evidence obtained from a warrantless search of
defendant’s trash can because “discarded garbage placed on the side of the street for
pickup does not fall within any recognized privacy interest protected by the Fourth
Amendment”); Barekman v. State, 200 P.3d 802, 810 (Wyo. 2009) (holding law
enforcement’s warrantless search of a trash bag retrieved from trash cans in front of the
defendant’s home did not violate the defendant’s search and seizure protections under
the State or Federal Constitution because defendant lacked “an expectation of privacy in
his trash that society would accept as objectively reasonable”).
78
determined Wright did not have a reasonable expectation of privacy in his
garbage for it to be protected under the Iowa or United States Constitution
when it denied Wright’s motion to suppress.
B. The Impact of Recent Supreme Court Decisions. The
Supreme Court’s decisions in United States v. Jones and Florida v.
Jardines in 2012 and 2013 marked the revival of the physical trespass
test as part of the Fourth Amendment analysis in addition to the Katz
reasonable-expectation-of-privacy test. See Jones, 565 U.S. at 409, 132
S. Ct. at 952. Cumulatively, the physical trespass test formulated in
those cases establishes that law enforcement conducts a “search” for
Fourth Amendment purposes regardless of any privacy expectations if
they physically trespass on a constitutional “effect” “for the purpose of
obtaining information,” id. at 404, 132 S. Ct. at 949, or they commit an
unlicensed physical intrusion of one’s curtilage, Jardines, 569 U.S. 1, 9–
10, 133 S. Ct. 1409, 1416–17 (2013).
Wright’s brief does not cite Jardines or discuss the physical trespass
test as it was expanded in Jardines. However, he does comparably argue
we need not analyze any privacy expectations under the Katz test because
Officer Heinz violated Wright’s state and federal search and seizure
protections under Jones when he physically trespassed on Wright’s
personal effects—namely, his garbage—to obtain information. I will
address this argument in-depth later, but the reemergence of the trespass
test does not overrule Greenwood to render it no longer binding in our
analysis of Wright’s privacy expectations under the Katz test. Contrary to
the majority’s treatment of Wright’s privacy expectations as though they
are largely irrelevant, the Supreme Court asserted in Jones that “the Katz
reasonable-expectation-of-privacy test has been added to, not substituted
79
for, the common-law trespassory test.” Jones, 565 U.S. at 409, 132 S. Ct.
at 952.
Jones and Jardines provide an additional trespass analysis to the
warrantless search of garbage, but the Supreme Court’s 2018 opinion in
Carpenter presents more relevant questions about the enduring validity of
Greenwood and the Katz test. Specifically, Carpenter calls into question
Greenwood’s analysis governing an individual’s privacy expectations in
garbage due to Greenwood’s use of the third-party doctrine, which provides
“a person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties,” to conclude individuals lacked an
objectively reasonable expectation of privacy in garbage placed in a publicly
accessible area. Carpenter, 585 U.S. at ___, 138 S. Ct. at 2216 (quoting
Smith v. Maryland, 442 U.S. 735, 743–44, 99 S. Ct. 2577, 2582 (1979)).
In Carpenter, the Supreme Court considered “whether the
Government conducts a search under the Fourth Amendment when it
accesses historical cell phone records that provide a comprehensive
chronicle of the user’s past movements” without a warrant. Id. at ___, 138
S. Ct. at 2211. In the past, the Supreme Court had applied the third-party
doctrine to hold individuals have no legitimate expectation of privacy—and
thus no Fourth Amendment protection—in their telephone numbers or
bank records because they contained information exposed to third parties.
Smith, 442 U.S. at 743–44, 99 S. Ct. at 2582; United States v. Miller, 425
U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976). Nonetheless, it declined to
extend the reach of the third-party doctrine to cover the government’s
warrantless seizure of the cell phone location records at issue in Carpenter
“given [their] unique nature.” 585 U.S. at ___, 138 S. Ct. at 2217.
Instead, the Court recognized that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements
80
as captured through [cell phone location records],” so the acquisition of
those records constituted a search under the Fourth Amendment for which
“the Government must generally obtain a warrant supported by probable
cause before acquiring.” Id. at ___, ___, 138 S. Ct. at 2217, 2221. It
explained, “[m]apping a cell phone’s location over the course of 127 days
provides an all-encompassing record of the holder’s whereabouts” and
“provides an intimate window into a person’s life” because “[a] cell phone
faithfully follows its owner beyond public thoroughfares and into private
residences, doctor’s offices, political headquarters, and other potentially
revealing locales.” Id. at ___, 138 S. Ct. at 2217–18. Additionally, the Court
reasoned the exposure of cell phone location records was more compelled
than voluntary because cell phones and their services are “indispensable
to participation in modern society” and “a cell phone logs a cell-site record
by dint of its operation, without any affirmative act on the part of the user
beyond powering up.” Id. at ___, 138 S. Ct. at 2220.
In dissent, multiple Justices noted the new limitations the majority’s
opinion imposed on the third-party doctrine. Justice Kennedy asserted,
“[t]he Court’s multifactor analysis—considering intimacy,
comprehensiveness, expense, retrospectivity, and voluntariness—puts the
[third-party doctrine] on a new and unstable foundation.” Id. at ___, 138
S. Ct. at 2234 (Kennedy, J., dissenting). Justice Alito lamented, “[T]he
Court effectively allows Carpenter to object to the ‘search’ of a third party’s
property, not recognizing the revolutionary nature of this change.” Id. at
___, 138 S. Ct. at 2260 (Alito, J., dissenting). Meanwhile, Justice Gorsuch
sought to go further than the majority in its limitations on the third-party
doctrine in his dissent, arguing the third-party doctrine was altogether
“horribly wrong.” Id. at ___, 138 S. Ct. at 2262 (Gorsuch, J., dissenting)
81
(quoting Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L.
Rev. 561, 564 (2009)).
In discussing the troubles of the third-party doctrine under the Katz
test, Justice Gorsuch criticized the Court’s holding in Greenwood based on
its reliance on the third-party doctrine in determining individuals do not
have an objectively reasonable expectation of privacy in their garbage
placed in a publicly accessible area for consumption. Id. at ___, 138 S. Ct.
at 2266. Justice Gorsuch opined,
In [Greenwood], the Court said that the homeowners forfeited
their privacy interests because “[i]t is common knowledge that
plastic garbage bags left on or at the side of a public street are
readily accessible to animals, children, scavengers, snoops,
and other members of the public.” But the habits of raccoons
don’t prove much about the habits of the country. I doubt,
too, that most people spotting a neighbor rummaging through
their garbage would think they lacked reasonable grounds to
confront the rummager. Making the decision all the stranger,
California state law expressly protected a homeowner’s
property rights in discarded trash. Yet rather than defer to
that as evidence of the people’s habits and reasonable
expectations of privacy, the Court substituted its own curious
judgment.
Id. at ___, 138 S. Ct. at 2266 (alteration in original) (emphasis omitted)
(citations omitted) (quoting Greenwood, 486 U.S. at 40, 108 S. Ct. at 1628–
29). Justice Thomas similarly cast doubt on the validity of the Katz test,
arguing, “it invites courts to make judgments about policy, not law” and
leads to circularity because the “Court is supposed to base its decisions on
society’s expectations of privacy, [but] society’s expectations of privacy are,
in turn, shaped by this Court’s decisions.” Id. at ___, ___, 138 S. Ct. at
2236, 2245 (Thomas, J., dissenting).
Based on the dissenting opinions in Carpenter, the majority has
decided we should no longer follow Greenwood. Such reliance to
anticipatorily overrule Greenwood is problematic for a number of reasons
82
beyond the fact that Wright never so much as cited Carpenter in his briefs.
Even under the Carpenter rationale and its limitations on the third-party
doctrine, Wright still does not have an objectively reasonable expectation
of privacy in his garbage because garbage is not comparable to the cell
phone location records conveyed to a third party in Carpenter. Through
the cell-site records in Carpenter, the government was able to map the
location of the petitioner’s cell phone—and likely the petitioner himself—
over the course of 127 days, allowing the government to “achieve[] near
perfect surveillance, as if it had attached an ankle monitor to the phone’s
user.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 2218 (majority opinion).
The Court remarked this sophisticated level of surveillance deserved
unique protections compared to past types of surveillance that have been
upheld as constitutional under the third-party doctrine, such as the
placing of a beeper in a container to augment visual surveillance in tracking
a vehicle through traffic, United States v. Knotts, 460 U.S. 276, 103 S. Ct.
1081 (1983). See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2218.
In distinguishing between cell-site information and past surveillance
techniques, the Carpenter Court reasoned past techniques used to
reconstruct a person’s movements, like the beeper in Knotts, “were limited
by a dearth of records and the frailties of recollection.” Carpenter, 585 U.S.
at ___, 138 S. Ct. at 2218. Searching through the contents of garbage
placed in a publicly accessible area for waste collection is not analogous to
tracking a cell phone for 127 days and certainly does not “achieve[] near
perfect surveillance, as if [the government] had attached an ankle monitor
to the phone’s user.” Id. at ___, 138 S. Ct. at 2218. Rather, it is simply “a
dearth of records” that law enforcement must comb through and put
together in combination with other investigative techniques to discern any
useful information about a defendant’s activities. Id. at ___, 138 S. Ct. at
83
2218. This is hardly the invasive, nonstop monitoring the Supreme Court
sought to protect individuals against in Carpenter.
Further, unlike the “indispensable” nature of the cell phone, nobody
forced Wright to use the city’s waste collection service. He could have
disposed of the garbage directly at the city’s designated landfill or
intermingled it with garbage disposed of in some other public receptacle if
he was genuinely concerned about the anonymity of his garbage. See Iowa
Code §§ 455B.361(2) (defining “litter” as “any garbage, rubbish, trash,
refuse, waste materials, or debris not exceeding ten pounds in weight or
fifteen cubic feet in volume”), .363 (authorizing the “discarding of such litter
in or on areas or receptacles provided” for litter disposal). Wright also had
the option of disposing of his garbage in a private waste receptacle owned
by others with their permission or at a citizen convenience center. Id.
§ 455B.307A(2) (prohibiting the disposal of solid waste “into areas or
receptacles provided for such purposes which are under the control of or
used by a person who has not authorized the use of the receptacle by the
person discarding the solid waste”); Clear Lake, Iowa, Code of Ordinances
§ 105.11(1) (requiring individuals to obtain the owner’s written consent
before “[d]eposit[ing] refuse in any [garbage cans]” they do not own); Iowa
Admin. Code r. 567—106.2 (defining “citizen convenience center” as “a
permanent, fixed-location facility that has the primary purpose of receiving
solid waste from citizens and small businesses that do not utilize solid
waste collection vehicles or satellite solid waste collection vehicles”).
Wright’s decision to dispose of his garbage by placing it at the edge of his
public alley for the city’s contracted waste collection service to collect is not
compelled in the same way cell-site location records are to warrant the
unique protection those records received in Carpenter.
84
Moreover, as discussed previously, the nature of garbage as
abandoned property similarly cuts against finding any privacy interests in
it. The Supreme Court’s holding in Greenwood was not simply based on
the third-party doctrine, as the Court also focused on the fact that the
respondent had discarded his garbage, thereby abandoning any privacy
expectation in its contents. 486 U.S. at 43–44, 108 S. Ct. at 1630–31.
Therefore, the third-party doctrine discussed in recent Supreme Court
decisions is but one factor in our analysis in this case.
The distinct nature of garbage discarded for collection as abandoned
property distinguishes it from a letter entrusted to a postal carrier, for
example. Unlike garbage, “[l]etters and other sealed packages [in transit]
are in the general class of effects in which the public at large has a
legitimate expectation of privacy,” so “warrantless searches of such effects
are presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109,
114, 104 S. Ct. 1652, 1657 (1984). Unlike garbage, there are all sorts of
laws protecting the privacy of the mail owner. See, e.g., 39 C.F.R. § 267.2(2017); id. § 266.1. It is a federal offense to take “any letter, postal card,
or package out of any” mailbox “before it has been delivered to the person
to whom it was directed.” 18 U.S.C. § 1702. The penalty for doing so is a
fine, imprisonment for not more than five years, or both. Id.When one “relinquishes possession” of mail to the postal
service, it is with the implicit understanding that it will be
delivered safely and unopened to the addressee or, if delivery
cannot be effected, returned unopened to the sender. We are
unaware of any custom or practice wherein citizens expect that
their trash be returned to them in the event that the trash
collector finds the landfill closed. While we could write pages
pointing out the defects in the mail-garbage analogy, . . . we
decline to join those who see no significant difference between
the garbage and the mail.
People v. Stage, 785 N.E.2d 550, 552 (Ill. App. Ct. 2003).
85
Finally, we should not attempt to read the tea leaves to adopt what
we think may become a shift in Supreme Court jurisprudence based on
changes in the composition of the Supreme Court, the Carpenter Court’s
test for cell phone location records, and various Justices’ dissenting or
concurring opinions to overrule binding Supreme Court precedent. As the
Supreme Court has stressed,
If a precedent of th[e Supreme] Court has direct application in
a case, yet appears to rest on reasons rejected in some other
line of decisions, [lower courts] should follow the case which
directly controls, leaving to th[e Supreme] Court the
prerogative of overruling its own decisions.
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109
S. Ct. 1917, 1921–22 (1989); see also Agostini v. Felton, 521 U.S. 203, 237–
38, 117 S. Ct. 1997, 2017 (1997) (reaffirming its declaration that lower
courts “should follow the case which directly controls, leaving to th[e
Supreme] Court the prerogative of overruling its own decisions” (quoting
Rodriguez de Quijas, 490 U.S. at 484, 109 S. Ct. at 1921–22)).
Until the Supreme Court itself overrules Greenwood, it remains good
law. Interpreting our analogous state constitutional provision in the same
manner as the Supreme Court provides the public with “increased
confidence that the decision is ‘rooted in law rather than in will.’ ” Gaskins,
866 N.W.2d at 53–54 (Waterman, J., dissenting) (quoting G. Alan Tarr,
Understanding State Constitutions 176 (1998)). This is especially so when
the constitutional provisions at issue are virtually identical and the only
argument for departure is a party’s subjective belief that there is a
“compelling” reason for departure based on a city ordinance that has
nothing to do with privacy, as is the case here. See Hans A. Linde, First
Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379,
392 (1980) (“[T]o make an independent argument under the state clause
86
takes homework—in texts, in history, in alternative approaches to analysis.
It is not enough to ask the state court to reject a Supreme Court opinion
on the comparable federal clause merely because one prefers the opposite
result.”).
C. The Trespass Element of Search and Seizure Law. Wright also
contends the district court erred in denying his motion to suppress
regardless of any privacy expectations concerning his garbage. According
to Wright, the Supreme Court’s 2012 Jones decision stands for the
proposition that any physical intrusion by the government on his personal
effects—including his garbage—to obtain information is a trespass that
amounts to a warrantless search in violation of the Fourth Amendment to
the United States Constitution and article I, section 8 of the Iowa
Constitution. Wright does not ask us to depart from Fourth Amendment
precedent to reach a different conclusion under article I, section 8 should
we determine Officer Heinz’s actions did not infringe upon Wright’s
protections under the Fourth Amendment. Although we reserve the right
to apply substantive federal standards more stringently, I only analyze
Wright’s trespass argument under the federal standard because he does
not make a separate argument under the Iowa Constitution. See Behm
v. City of Cedar Rapids, 922 N.W.2d 524, 566 (Iowa 2019) (“The plaintiffs
have not suggested that we should follow different substantive standards
under the Iowa Constitution than would be applied to procedural due
process claims under the Federal Constitution. As a result, we apply the
substantive federal standards, reserving the right to apply these
standards in a more stringent fashion than under federal caselaw.”).
During the suppression hearing, Officer Heinz testified that he never
left the public alley to retrieve Wright’s garbage, but he briefly touched the
garbage cans on two of the three occasions he obtained Wright’s garbage
87
bags. Wright argues Officer Heinz physically trespassed by touching the
garbage cans and “the opaque bags inside to remove them” to obtain
information. Wright believes this alleged trespass upon his “effects”
constituted a search in violation of the Fourth Amendment and article I,
section 8 based on the Supreme Court’s decision in Jones.
In Jones, a law enforcement task force installed a GPS tracking
device on the undercarriage of a Jeep registered to the defendant’s wife
without a warrant and tracked the Jeep’s movements over the course of
twenty-eight days while investigating the defendant for narcotics
trafficking. 565 U.S. at 402–03, 132 S. Ct. at 948. This tracking produced
more than 2000 pages of data over the four-week surveillance period and
helped lead to the defendant’s conviction on various narcotics charges. Id.at 403–04, 132 S. Ct. at 948–49. The defendant moved to suppress the
evidence collected through the GPS device, but the district court only
granted the motion in part. Id. at 403, 132 S. Ct. at 948. It suppressed
the data obtained while the defendant was parked at his residence, but it
determined the remaining data was admissible because the defendant
“ha[d] no reasonable expectation of privacy in his movements from one
place to another” while “traveling in an automobile on public
thoroughfares.” Id.The Supreme Court reversed the district court’s decision, holding the
warrantless installation of the GPS device on the defendant’s vehicle and
its use to track the vehicle’s movements was a search in violation of the
Fourth Amendment because “[t]he Government physically occupied private
property for the purpose of obtaining information.” Id. at 404, 132 S. Ct.
at 949. The Supreme Court stressed the significance of property rights
within the meaning of the Fourth Amendment when it was adopted,
explaining, “Fourth Amendment jurisprudence was tied to common-law
88
trespass, at least until the latter half of the 20th century.” Id. at 405, 132
S. Ct. at 949. Although the Supreme Court acknowledged its later cases
have applied Justice Harlan’s reasonable-expectation-of-privacy test from
his Katz concurrence, it concluded that test was unnecessary to apply
under the circumstances. As the Supreme Court declared, “[T]he Katz
reasonable-expectation-of-privacy test has been added to, not substituted
for, the common-law trespassory test.” Id. at 409, 132 S. Ct. at 952.
Because the Fourth Amendment’s history “embod[ied] a particular concern
for government trespass upon” effects like the defendant’s Jeep, the
Supreme Court held the trespass—the installation of the GPS tracking
device to obtain information about the defendant—violated the Fourth
Amendment regardless of any privacy expectations concerning the Jeep.
Id. at 406, 410, 132 S. Ct. at 950, 952.
A year later, the Supreme Court expanded upon its use of the
physical trespass test again in Jardines. There, the Court held the
government conducted a search for Fourth Amendment purposes when law
enforcement walked onto a homeowner’s porch with a drug-sniffing dog to
investigate the contents of the home. Jardines, 569 U.S. at 9–10, 133 S. Ct.
at 1416–17. In reaching its decision, the Court recognized the porch as
curtilage—a constitutionally protected area—and remarked, “the only
question is whether [the homeowner] had given his leave (even implicitly)
for [law enforcement] to” enter the curtilage. Id. at 8, 133 S. Ct. at 1415.
The Court concluded law enforcement’s use of the drug-sniffing dog to
explore the area around the home was a search under the Fourth
Amendment because the conduct was an unlicensed physical intrusion.
Id. at 9, 133 S. Ct. at 1416. It distinguished between a visitor routinely
knocking on the door, for which there is a limited, implied license for a
specific purpose based on social norms, and the more invasive purpose of
89
using a drug-sniffing dog to explore details about the home. Id. at 8–10,
133 S. Ct. at 1415–17.
Together, Jones and Jardines establish a physical trespass test in
which law enforcement conducts a search for Fourth Amendment purposes
if they physically trespass on a constitutional “effect” to “obtain[]
information,” Jones, 565 U.S. at 404, 132 S. Ct. at 949, or they commit an
unlicensed physical intrusion of a constitutionally protected area,
Jardines, 569 U.S. at 9–10, 133 S. Ct. at 1416–17. This use of the trespass
test under the Fourth Amendment marked a significant change in the
Supreme Court’s Fourth Amendment jurisprudence, as it had not
employed any formal trespass test between 1886 and its decision in Jones
in 2012. Orin S. Kerr, The Curious History of Fourth Amendment Searches,
2012 Sup. Ct. Rev. 67, 76–77 (2012) [hereinafter Kerr].12 Though the
Supreme Court had equated searches with trespasses informally until the
1960s, it had “abandoned the trespass test in favor of” the reasonable-
expectation-of-privacy test until the Supreme Court revived the trespass
test in Jones. Id. at 67–68. Wright relies on the resurgence of the trespass
test in asking us to find Officer Heinz violated his Fourth Amendment and
article I, section 8 rights by touching Wright’s garbage cans and bags to
obtain information without a warrant.
Whether Officer Heinz violated Wright’s constitutional search and
seizure rights by physically touching Wright’s garbage cans and bags at the
edge of the public alley to obtain information depends on whether these
12See also Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 886
(2014) (“When we restrict our view [of the Fourth Amendment] to Supreme Court cases,
an almost comical history of uncertainty with respect to trespass emerges. Roughly
speaking, the Court rejected any trespass requirement in 1886 in Boyd v. United States,
applied a trespass test in 1928 in Olmstead v. United States, and rejected the ‘trespass
doctrine’ in Katz v. United States, before finally adopting a trespass test in United States
v. Jones—only to then avoid it, possibly, in Florida v. Jardines.” (footnotes omitted)).
90
items are “effects” under federal and state constitutional law. Most courts,
including those that have held constitutional protections exist in garbage,
have only examined law enforcement’s warrantless grab of another’s
garbage to obtain information under the reasonable-expectation-of-privacy
test without examining whether law enforcement trespassed upon a
constitutionally protected “effect” in the form of garbage containers or their
contents. See Greenwood, 486 U.S. at 41–43, 108 S. Ct. at 1629–30
(compiling federal and state appellate court decisions holding individuals
do not have a reasonable expectation of privacy in garbage left for collection
in a publicly accessible area); see also State v. Tanaka, 701 P.2d 1274,
1276–77 (Haw. 1985); State v. Goss, 834 A.2d 316, 319 (N.H. 2003); State
v. Hempele, 576 A.2d 793, 804–07 (N.J. 1990). Jones never defined what
constitutes an “effect” and “[c]ourts reviewing warrantless garbage pulls
post-Jones have largely remained silent on the question of whether garbage
itself counts as a personal effect.” Tanner M. Russo, Note, Garbage Pulls
Under the Physical Trespass Test, 105 Va. L. Rev. 1217, 1235 (2019); see
also Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving
Personal Property Due Protection, 125 Yale L.J. 946, 957–60 (2016)
[hereinafter Brady] (explaining the failure of Jones to define “effect”).
Because the Supreme Court in Jones relied upon the common law of
trespass to determine whether a search occurred, I look to the common law
doctrine of trespass to chattels to determine whether Wright’s garbage
placed at the edge of the public alley for collection constitutes an “effect.”
Cf. Jones, 565 U.S. at 411, 132 S. Ct. at 953 (holding the Fourth
Amendment “must provide at a minimum the degree of protection it afforded
when it was adopted”); see also id. at 418–19, 132 S. Ct. at 957–58 (Alito,
J., concurring in the judgment) (“By attaching a small GPS device to the
underside of the vehicle that respondent drove, the law enforcement officers
91
in this case engaged in conduct that might have provided grounds in 1791
for a suit for trespass to chattels. And for this reason, the Court concludes,
the installation and use of the GPS device constituted a search.” (footnotes
omitted)).13 “Since at least the late eighteenth century, chattel property has
generally been marked by three features: (1) the ability to exclude others,
(2) the ability to transfer the object, and (3) control over its use.” Brady,
125 Yale L.J. at 1002; see also 2 William Blackstone, Commentaries *388–
89 (defining possessed chattel property as maintaining the “right, and also
the occupation, of any movable chattels; so that they cannot be transferred
from him, or cease to be his, without his own act or default”). Here, the
garbage bags and their contents failed to exhibit these features by virtue of
their location on the edge of the public alley for anyone to access and
Wright’s intention to convey them to a third-party collector.
The law of abandonment further supports this conclusion. “Property
is abandoned when the owner no longer wants to possess it.” Benjamin,
534 N.W.2d at 406. This occurs through “proof that the owner intends to
abandon the property and has voluntarily relinquished all right, title and
interest in the property.” Id. In upholding law enforcement’s warrantless
search of a garbage can in a hotel room, the Supreme Court previously
recognized the contents of the garbage can were “abandoned” personal
property after the defendant threw them away and vacated the room. Abel,
362 U.S. at 241, 80 S. Ct. at 698. As explained above, Wright’s decision to
13“Trespass has taken many forms and changed over time, rendering it a tricky
doctrine to pin down.” Kerr, 2012 Sup. Ct. Rev. at 90. The Supreme Court never defined
which of the various eighteenth-century understandings of trespass are incorporated into
a Fourth Amendment search in Jones. Nevertheless, the interactions between Justice
Scalia in the majority opinion and Justice Alito in his concurrence suggest that the
Supreme Court was referring to a trespass to chattels in Jones. Id. (“Justice Alito
suggests in his concurrence that the majority is referring to a trespass to chattels. The
majority did not contradict Alito’s claim; given Scalia’s many volleys with Alito in Jones,
this may suggest tacit agreement.” (footnote omitted)).
92
place the garbage at the edge of the public alley “for hauling to a public
dump signifies abandonment.” Shelby, 573 F.2d at 973.
“We are unaware of any custom or practice wherein citizens expect
that their trash be returned to them . . . .” Stage, 785 N.E.2d at 552.
Additionally, unless Wright was going to sit outside next to the garbage
cans and monitor them to ensure nobody went through their contents, he
had no real ability to exclude others or control where it was transferred.
Consequently, he could not demonstrate an ability to exclude others or the
ability to transfer the object—two of the three touchstones of chattel
property.
He also no longer maintained control over the garbage’s use—the
third touchstone of chattel property. If he genuinely wanted to retain
control over the garbage at issue, he would not have placed it in a publicly
accessible area where any person, animal, or even the weather could
expose their contents to the public or transport them to another location.
Accordingly, the garbage bags and their contents do not meet the common
law understanding of what constitutes chattel in order to be considered an
effect protected under the Fourth Amendment or article I, section 8.
Although Wright may have been under the mistaken belief that only
the waste collector would take the garbage, and thus, anyone else who took
it was unlicensed to do so, this still does not render Officer Heinz’s conduct
a search under the Supreme Court’s holding in Jardines. Jardines is
limited to police conduct that occurs when law enforcement officers
physically invade curtilage, “the area ‘immediately surrounding and
associated with the home’ ” such that it is “part of the home itself for Fourth
Amendment purposes.” 569 U.S. at 6, 133 S. Ct. at 1414 (quoting Oliver,
466 U.S. at 180, 104 S. Ct. at 1742). Wright never argued the garbage was
located on curtilage. “[W]e will not speculate on the arguments [the parties]
93
might have made and then search for legal authority and comb the record
for facts to support such arguments.” Hyler v. Garner, 548 N.W.2d 864,
876 (Iowa 1996). In any event, the district court found “no evidence that
Officer Heinz ever left the public alley to collect any of the garbage.” We
give the district court’s factual findings deference due to the district court’s
ability to assess the witnesses’ credibility. State v. Brown, 890 N.W.2d 315,
321 (Iowa 2017). A public alley is not “part of the home itself for Fourth
Amendment purposes.” Jardines, 569 U.S. at 6, 133 S. Ct. at 1414(quoting Oliver, 466 U.S. at 180, 104 S. Ct. at 1742).
Finally, even if Wright’s garbage cans were constitutionally protected
effects, Officer Heinz’s brief touching of the cans to retrieve Wright’s
abandoned garbage was not a trespass in violation of the Fourth
Amendment. “Not all trespasses by law enforcement are violations of the
Fourth Amendment.” United States v. Sweeney, 821 F.3d 893, 900 (7th
Cir. 2016) (holding law enforcement did not trespass upon defendant’s
property for constitutional purposes by seizing evidence in the basement
common area of the multi-unit apartment complex where defendant lived,
explaining that a trespass only violates the Fourth Amendment if it occurs
on a constitutionally protected area). Despite its reliance on a trespass test
in Jones and Jardines, the Supreme Court has not identified “which version
of trespass the Fourth Amendment search doctrine incorporates.” Kerr,
2012 Sup. Ct. Rev. at 90.
Justice Scalia’s Jones opinion reasoned the Fourth Amendment
“must provide at a minimum the degree of protection it afforded when it was
adopted,” Jones, 565 U.S. at 411, 132 S. Ct. at 953, suggesting “the scope
of Fourth Amendment protection remains fixed [at the eighteenth-century
standard] despite intervening changes in trespass law,” Kerr, 2012 Sup.
Ct. Rev. at 923. Yet, “the existence of a property interest is determined by
94
reference to ‘existing rules or understandings that stem from an
independent source such as state law.’ ” Phillips v. Wash. Legal Found.,
524 U.S. 156, 164, 118 S. Ct. 1925, 1930 (1998) (quoting Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)).
Hence, “[c]hanges in trespass law could be recognized as changing the
scope of protections without truly changing the Fourth Amendment.” Kerr,
2012 Sup. Ct. Rev. at 93. Given the changes to common law trespass over
time, it is appropriate for us to follow the trespass laws of today rather than
of the eighteenth century.
Today, the common law doctrine of trespass to chattel requires “some
actual damage to the chattel before the action can be maintained.” Jones,
565 U.S. at 419 n.2, 132 S. Ct. at 957 n.2 (Alito, J., concurring in judgment)
(quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on
Law of Torts 87 (5th ed. 1984) [hereinafter Prosser & Keeton]). Where the
alleged trespasser “merely interferes without doing any harm—as where,
for example, he merely lays hands upon the plaintiff’s horse, or sits in the
car” there is no action for trespass “in the absence of any actual damage.”
Prosser & Keeton at 87; see also Restatement (Second) of Torts § 218, at
420 (Am. L. Inst. 1981) (explaining one is only liable for a trespass to chattel
if that person “dispossesses the other of the chattel”; “the chattel is
impaired as to its condition, quality, or value”; “the possessor is deprived
of the use of the chattel for a substantial time”; or “bodily harm is caused
to the possessor, or harm is caused to some person or thing in which the
possessor has a legally protected interest”). Similarly, Iowa law generally
only criminalizes a “trespass” if some form of damage accompanies the
trespass. See Iowa Code § 716.7(2).
Here, Officer Heinz merely touched Wright’s garbage cans without
causing any actual damage to them. Therefore, even if Wright’s garbage
95
cans were constitutionally protected effects, Officer Heinz did not commit
a trespass in violation of the Fourth Amendment or article I, section 8 by
briefly touching them. I believe Officer Heinz acted lawfully when he
obtained Wright’s garbage from the edge of the public alley and accordingly
would affirm the district court’s orders denying Wright’s motion to
suppress.
D. Problems with the Majority’s Approach. By attempting to
resolve what it characterizes as “competing, inconsistent doctrines
governing seizure and search law,” the majority injects more uncertainty
into our search and seizure jurisprudence. The majority hides its most
significant holding in this case by waiting until the last portion of its
opinion to declare, “Within the meaning of article I, section 8, an officer
acts unreasonably when, without a warrant, the officer physically
trespasses on protected property or uses means or methods of general
criminal investigation that are unlawful, tortious, or otherwise
prohibited.” It follows that rule with a citation to a law review article and
the following quote from that article in parentheses that enlightens the
majority’s reader to the far-reaching impact of its holding:
[A] court should ask whether government officials have
engaged in an investigative act that would be unlawful for a
similarly situated private actor to perform. That is, stripped of
official authority, has the government actor done something
that would be tortious, criminal, or otherwise a violation of
some legal duty? Fourth Amendment protection, in other
words, is warranted when government officials either violate
generally applicable law or avail themselves of a governmental
exemption from it.
William Baude & James Y. Stern, The Positive Law Model of the Fourth
Amendment, 129 Harv. L. Rev. 1821, 1825–26 (2016).
The majority’s broad conclusion that an officer’s conduct is
“unreasonable” and thus in violation of article I, section 8, “when, without
96
a warrant, the officer physically trespasses on protected property or uses
means or methods of general criminal investigation that are unlawful,
tortious, or otherwise prohibited” flies in the face of the United States
Supreme Court and calls into question the constitutionality of many of our
laws currently allowing law enforcement officers to take certain actions
during investigations that private citizens cannot take. Unlike private
citizens, law enforcement officers have increased arrest authority,14 may
enter private property to make an arrest under certain conditions,15 issue
citations in lieu of arrest,16 arrest a material witness without a warrant,17
participate in a crime for the purpose of gathering evidence under some
conditions,18 execute a Terry stop,19 use roadblocks for vehicle stops under
proper circumstances,20 and perform certain seizures under the
community caretaking doctrine,21 to name a few of the ways law
enforcement authority exceeds that of private citizens. Or at least it did
until today.
Under the majority’s reasoning, it appears numerous valid law
enforcement methods are no longer allowed without a warrant because
these actions are prohibited if performed by a private citizen. “Our
14Iowa Code section 804.7 lists six situations in which a peace officer may make
an arrest without a warrant while Iowa Code section 804.9, which governs arrests by
private persons, only lists two situations in which a private person may make an arrest.
15See Iowa Code § 804.15.
16See Iowa Code § 805.1(1).
17See Iowa Code § 804.11(1).
18See Iowa Code § 704.11(1).
19See State v. Tyler, 830 N.W.2d 288, 292–93 (Iowa 2013) (discussing the validity
of investigatory or Terry stops in the traffic stop context).
20SeeState v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980) (en banc) (explaining
when law enforcement may use roadblocks to stop vehicles for investigatory purposes).
21SeeState v. Werner, 919 N.W.2d 375, 379 (Iowa 2018) (explaining the
community caretaking doctrine).
97
decisions have universally held that the purpose of a Terry stop is to
investigate crime,” concluding such warrantless stops—including traffic
stops—were justified if law enforcement had reasonable suspicion to
investigate a crime. State v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013). A
private citizen who conducts a warrantless traffic stop that temporarily
hinders the motorist’s ability to leave for the purposes of investigating a
crime subjects himself to criminal and civil liability for various offenses.
See, e.g., Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa
2000) (en banc) (“We have defined false imprisonment as an unlawful
restraint on freedom of movement or personal liberty. The elements of the
tort are (1) detention or restraint against a person’s will, and (2)
unlawfulness of the detention or restraint.” (citation omitted)). Because the
majority concludes an officer’s conduct is “unreasonable” and thus in
violation of article I, section 8, “when, without a warrant, the officer
physically trespasses on protected property or uses means or methods of
general criminal investigation that are unlawful, tortious, or otherwise
prohibited,” investigative Terry stops may now be unconstitutional because
a private citizen cannot lawfully use the same means of criminal
investigation.
Likewise, the exigent circumstances exception to the warrant
requirement is no more under the majority’s rationale. In the past, we have
upheld warrantless searches if they were “based on probable cause and
exigent circumstances.” State v. Naujoks, 637 N.W.2d 101, 107 (Iowa
2001). If “a person of reasonable prudence would believe a crime has been
committed or that evidence of a crime might be located in the particular
area to be searched” and exigent circumstances existed, officers had the
authority to conduct a warrantless search. Id. at 108–09. These
circumstances included situations that involved “danger of violence and
98
injury to the officers; risk of the subject’s escape; or the probability that,
unless immediately seized, evidence will be concealed or destroyed.” Id. at
108. However, a private citizen is technically subject to various criminal
offenses for entering another person’s private property without consent to
conduct a warrantless search regardless of these exigent circumstances,
so the exigent circumstances exception to the warrant requirement now
appears to have a shaky foundation under the majority’s holding today.
The community caretaking exception to the warrant requirement,
too, would no longer be a reliable law enforcement tool under the majority’s
holding. Under this exception, we previously upheld law enforcement’s
warrantless seizures if law enforcement was engaged in “bona fide
community caretaker activity” that the officer subjectively intended to
engage in and the “public need and interest outweigh[ed] the intrusion
upon the privacy of the citizen.” State v. Coffman, 914 N.W.2d 240, 245
(Iowa 2018) (quoting State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003)).
We have previously discussed the United States Supreme Court case of
Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523 (1973), to explain the
purpose of the community caretaking function. There, officers entered an
automobile to remove the defendant’s unattended firearm from the vehicle
before it was towed away in what the Supreme Court considered a
constitutional warrantless search because it was justified under the
community caretaking exception. Id. at 437, 447–48, 93 S. Ct. at 2526,
2531. According to the majority’s expansive definition of unreasonable
conduct, this sort of action to protect the public may no longer be
constitutional because it involves a physical intrusion on personal
property.
99
“Westlaw will be busy tracking down and flagging the decisions of
our court that, after today, are no longer good law.” Schmidt v. State, 909
N.W.2d 778, 819 (Iowa 2018) (Mansfield, J., dissenting).
Clarity as to what the law requires is generally a good thing. It
is especially beneficial when the law governs interactions
between the police and citizens. Law enforcement officials
have to make many quick decisions as to what the law requires
where the stakes are high, involving public safety on one side
of the ledger and individual rights on the other.
Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 601 (Iowa 2011).
Unfortunately, our state law enforcement officials are now left with a guess-
and-see approach to many actions previously considered lawful,
undermining public safety in the process.
III. Conclusion.
For these reasons, I would affirm the district court’s denial of
Wright’s motion to suppress and its judgment of conviction.
Waterman and Mansfield, JJ., join this dissent.
100
#19–0180, State v. Wright
WATERMAN, Justice (dissenting).
I respectfully dissent and join the separate dissents of Chief Justice
Christensen and Justice Mansfield. I too would affirm the decisions of the
district court and court of appeals denying the defendant’s motion to
suppress. I write separately to emphasize several points.
First, the majority’s new de facto test—if a private citizen can’t
search discarded trash, the police can’t do it either—has never been
recognized by any court or dissent in the country.22 That is not surprising.
The test makes little sense. Police officers can do many things private
citizens cannot. For example, I can’t set up a roadblock for vehicle
equipment checks. I can’t run red lights to respond to a 911 call for help.
I can’t detain someone I suspect of a crime (Terry stop). I can’t offer a
complicit neighbor a cooperation agreement to inform on the drug dealer
next door. I can’t search a fellow passenger’s luggage boarding a plane or
22The majority opinion begins with a quote from a dissent “that government
officials shall be subjected to the same rules of conduct that are commands to the citizen.”
The majority’s introductory paragraph describes that limitation on the police as a
“bedrock constitutional principle.” The majority nevertheless purports to retreat from its
broad test by stating in footnote five in division III(E) that it is holding something else:
“[A]rticle I, section 8 prohibits an officer engaged in general criminal investigation from
conducting a search or seizure that constitutes a trespass on a person’s house, papers,
or effects without first obtaining a warrant.” That brief retreat to a narrower holding is
reversed in division IV(D), when the majority again touts its broader test, favorably
quoting a law review article proposing that a “court should ask whether government
officials have engaged in an investigative act that would be unlawful for a similarly
situated private actor to perform.” So forgive my skepticism that the new test is the
narrower one stated in footnote five.
In any event, I disagree with the premise of the majority’s “holding” that trash
placed curbside for disposal is an effect entitled to constitutional protection. The majority
cites no court holding that discarded garbage is an effect entitled to Fourth Amendment
protection. Today’s majority decision stands alone among trash rip cases in equating
“garbage bags” with “expensive luggage” for purposes of determining the “container[’]s”
constitutional protection. And the majority joins a jurisprudential fringe in concluding a
defendant “did not abandon all right, title, and interest” in garbage placed curbside for
collection.
101
a fellow fan’s backpack entering Kinnick Stadium. Police officers can do
those things and many others without a court-issued warrant. Until
today, they could search discarded trash for evidence of crimes, hardly an
infringement on anyone’s civil liberties.
I would not adopt a new constitutional test that has not been vetted
by the adversary process and adjudicated first by the district court. The
majority denies the State the opportunity to make a record in district court
on all the problems with its new approach. By the majority author’s own
standards, Wright waived any reliance on this new test by never asking
the court to adopt it. State v. Gibbs, 941 N.W.2d 888, 905 (Iowa 2020)
(McDonald, J., concurring specially in the judgment, joined by Oxley, J.).
The majority is guilty of faux originalism, “living” constitutionalism,
and ahistorical analysis. The majority finds no support for its newly
concocted test in the Federalist Papers or the debates at the Iowa
constitutional convention. Those sources are neither confronted nor
consulted to test its false premise that law enforcement historically could
not search garbage. Again, I am not surprised. “I have no doubt that
examining people’s waste has been an investigative tool of law enforcement
throughout recorded history.” State v. Morris, 680 A.2d 90, 104 (Vt. 1996)
(Dooley, J., dissenting). That longstanding practice continues to this day,
as shown in Chief Justice Christensen’s dissent, in its second footnote.
The majority cites no historical evidence to the contrary. The reality is
that citizens have scavenged through discarded waste for centuries. Mary
Downs & Martin Medina, A Short History of Scavenging, 42 Compar.
Civilizations Rev. 23, 23 (2000) (“The recovery of materials from waste to
be reused or recycled has been carried out for millennia, and probably
throughout the whole of human history.”). “Scavenging flourished during
the nineteenth century,” and in the United States, peddlers freely searched
102
trash in alleyways and town dumps for items of value. Id. at 34–35.
Applying the logical converse of the majority’s test: “if a private citizen can
do it, so can the police,” then discarded trash was fair game for perusal by
laypeople and law enforcement alike when our federal and state
constitutions were written.
The historical record belies any claim that at the time of our nation’s
founding, police could not conduct warrantless searches outside homes to
investigate crime. On the contrary, constables, customs officials, and
other law enforcement officers enjoyed statutory authority to seize and
search private property outside the home. See Gerard V. Bradley, Present
at the Creation? A Critical Guide to Weeks v. United States and Its Progeny,
30 St. Louis U. L.J. 1031, 1041–45 & nn.64–65 (1986) (“Warrantless
searches, then as now, were the rule rather than the exception, and each
of the thirteen colonies, and then states, as a common statutory practice,
authorized them. The First Congress, which passed the fourth
amendment, also authorized warrantless searches.” (footnote omitted)).
Indeed, private citizens could search and seize illicit goods as well. “At
common law, any person may at his peril, seize for a forfeiture to the
government; and if the government adopt his seizure, and the property is
condemned, he will be completely justified . . . .” Gelston v. Hoyt, 16 U.S.
(3 Wheat.) 246, 310 (1818).23 Our framers focused on protecting private
homes from searches pursuant to general warrants, not discarded trash.
23See also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev.
757, 767 (1994) (“At common law, it seems that nothing succeeded like success. Even if
a constable had no warrant, and only weak or subjective grounds for believing someone
to be a felon or some item to be contraband or stolen goods, the constable could seize the
suspected person or thing. The constable acted at his peril. If wrong, he could be held
liable in a damage action. But if he merely played a hunch and proved right—if the
suspect was a felon, or the goods were stolen or contraband—this ex post success
apparently was a complete defense.”). Again, discarded trash was fair game for searches
by police and private citizens alike when our Federal Constitution was enacted.
103
See David E. Steinberg, Restoring the Fourth Amendment: The Original
Understanding Revisited, 33 Hastings Const. L.Q. 47, 62 (2005) (“From the
beginning, the doctrine of unreasonable searches and seizures focused on
house searches, and not other types of government conduct.”). It is
specious to claim police could not search discarded trash outside the
home’s curtilage at our nation’s founding and then project that
nonexistent limitation on Officer Heinz in Clear Lake today.
The majority’s historical analysis involves sleight of hand by
equating lack of authority to enter private homes without a warrant in
1789 or 1857 to lack of authority to search discarded trash outside the
home’s curtilage. That is a leap too far today and at our nation’s founding.
The majority correctly recognizes that the Iowa search and seizure
provision “as originally understood, was meant to provide the same
protections as the Fourth Amendment, as originally understood.” Put
another way, our state constitution’s framers did not require greater
restrictions on law enforcement.
Chest-thumping about our independent power to interpret the Iowa
Constitution is not persuasive. Our court should not rely on our
independent constitutional authority simply to evade federal precedent we
don’t like.24 We should explain why a different result is supported by
24The majority cites State v. Ochoa, 792 N.W.2d 260 (Iowa 2010), seven times and
State v. Short, 851 N.W.2d 474 (Iowa 2014), three times, quoting liberally from those
decisions. Their common denominator with today’s decision is that the court freelanced
under the Iowa Constitution to evade settled federal precedent and create a new standard
the defendant never raised or argued and is contrary to the position of most state courts.
See State v. Baldon, 829 N.W.2d 785, 835–47 (Iowa 2013) (Mansfield, J., dissenting)
(cataloging flaws in Ochoa); see also Short, 851 N.W.2d at 507–19 (Waterman, J.,
dissenting); id. at 519–27 (Mansfield, J., dissenting); id. at 527–45 (Zager, J., dissenting).
Today’s majority also quotes liberally from State v. Ingram, 914 N.W.2d 794 (Iowa 2018),
another 4–3 decision of breathtaking overbreadth that unnecessarily handicaps law
enforcement in vehicle inventory searches. See id. at 824–25 (Mansfield, J., concurring
specially). I would not rely on the shifting sands of this court’s mistakes departing from
the national consensus in search and seizure precedents.
104
differences in the text, history, or purpose of the Iowa provision, persuasive
decisions from our sister states, or practical problems. See State v.
Gaskins, 866 N.W.2d 1, 50–56 (Iowa 2015) (Waterman, J., dissenting)
(urging use of neutral interpretive principles or divergence criteria). Such
analysis is missing in the majority and concurring opinions, and thereby
“vindicate[s] the worst fears of the critics of judicial activism.” State v.
Hempele, 576 A.2d 793, 816 (N.J. 1990) (O’Hern, J., concurring in part
and dissenting in part). Consistency with federal precedent interpreting
identical language promotes legitimacy:
We have declared that “[d]ivergent interpretations are
unsatisfactory from the public perspective, particularly where
the historical roots and purposes of the federal and state
provisions are the same.” A citizen becomes confused when
he or she finds that under virtually identical constitutional
provisions, it is permissible for a federal agent, but not a
[state] law-enforcement officer, to search his or her
garbage. . . . In my view, garbage does not change its
constitutional dimensions based on who searches the garbage
in a particular location. Different treatment of such an
ordinary commodity appears illogical to the public and hence
breeds a fundamental distrust of the legal system that
develops such distinctions.
Id. at 817 (Garibaldi, J., dissenting) (first alteration in original) (citation
omitted) (quoting State v. Hunt, 450 A.2d 952, 955 (N.J. 1982)). Applying
its own divergence criteria, the Minnesota Supreme Court recently
declined to depart from federal precedent in holding police could conduct
warrantless searches of garbage under its state constitution. State v.
McMurray, 860 N.W.2d 686, 690–95 (Minn. 2015). We should reach the
same conclusion.
As set forth in Chief Justice Christensen’s dissent, federal
authorities nationwide and police in the overwhelming majority of states
can lawfully conduct warrantless searches of garbage placed out for
collection. That is because most courts view trash as abandoned property
105
devoid of any reasonable expectation of privacy, as Justice Mansfield
further explains in his dissent. The majority relies on no court in any
jurisdiction that has held garbage discarded for pickup is an “effect” within
the meaning of the Fourth Amendment or equivalent state constitutional
search and seizure provision. Trash rips are an important investigatory
tool for law enforcement; they gather evidence leading to search warrants
that shut down meth labs and other societal scourges. We will now see
more federal drug prosecutions in Iowa because today’s decision effectively
ends the use of trash rips in state criminal prosecutions. Offenders facing
federal time without parole likely won’t view today’s decision as advancing
their civil liberties.
The scope and import of today’s decision is at best unclear, at worst
tumultuous. Perhaps it only applies to trash pulls in localities with an
ordinance like Clear Lake’s, and local elected officials can simply amend
the ordinance to restore police powers to search garbage for evidence of
crimes. Because people in most places can dumpster dive and remove
items without being arrested for trespass or theft, life may go on
unchanged in much of the state. Perhaps the new test is dicta that does
not bind our trial courts in other contexts. But we won’t have to wait long
for defense counsel to argue Terry stops are now unconstitutional because
a private citizen cannot detain someone acting suspiciously. Or that our
decision reaffirming the automobile exception to the warrant requirement,
State v. Storm, 898 N.W.2d 140, 156 (Iowa 2017), is no longer good law
because a private citizen cannot conduct a traffic stop. The majority
asserts that “[c]urrent Fourth Amendment jurisprudence is a mess” to
106
justify a new test that simply exacerbates uncertainty. Their decision
raises more questions than it answers and creates a far bigger mess.25
I would follow California v. Greenwood, 486 U.S. 35, 40–41, 108
S. Ct. 1625, 1628–29 (1988), and our state’s published appellate decisions
holding that police do not need a warrant to search garbage placed out for
collection. See State v. Skola, 634 N.W.2d 687, 689–91 (Iowa Ct. App.
2001) (applying the Greenwood analysis under both the United States and
Iowa Constitutions to uphold a police search of the defendant’s garbage);
State v. Henderson, 435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988) (same).
Today’s majority has not identified any problems that justify departing
from this well-settled precedent. See Book v. Doublestar Dongfeng Tyre
Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates
continued adherence to our precedent absent a compelling reason to
change the law.”).
“Courts adhere to the holdings of past rulings to imbue the law with
continuity and predictability and help maintain the stability essential to
society.” “From the very beginnings of this court, we have guarded the
venerable doctrine of stare decisis and required the highest possible
showing that a precedent should be overruled before taking such a step.”
State v. Iowa Dist. Ct., 902 N.W.2d 811, 817 (Iowa 2017) (citation omitted) (first quoting
State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014); then quoting McElroy v. State, 703
25The majority self-servingly overstates the alleged incoherence of federal search
and seizure precedent. See Davis v. United States, 564 U.S. 229, 247, 131 S. Ct. 2419,
2433 (2011) (“Decisions overruling this Court’s Fourth Amendment precedents are rare.”).
By contrast, the special concurrence finds coherence in trends in Fourth Amendment
precedent, but doesn’t like the outcomes and would simply rely on the Iowa Constitution
to get to his desired result.
Presumably, we will soon see a wave of postconviction-relief (PCR) actions seeking
to overturn convictions in cases where a trash rip led to inculpatory evidence and a larger
wave of PCRs alleging defense counsel provided constitutionally-deficient representation
for failing to anticipate our court would adopt the new test limiting police investigations
to what private citizens can do.
107
N.W.2d 385, 394 (Iowa 2005)). Finding no compelling reason to overrule precedent, I
would stay the course.
The majority identifies only six states that do not follow Greenwood
under their state constitutions. People v. Edwards, 458 P.2d 713, 718
(Cal. 1969) (en banc) (pre-Greenwood decision holding defendant had a
justified expectation of privacy in garbage can next to his house); State v.
Goss, 834 A.2d 316, 319 (N.H. 2003) (rejecting Greenwood under New
Hampshire Constitution, construing state constitution to provide greater
protection than the Fourth Amendment); Hempele, 576 A.2d at 814
(majority opinion) (rejecting Greenwood under New Jersey Constitution);
State v. Crane, 254 P.3d 117, 123 (N.M. Ct. App. 2011) (holding defendant
had reasonable expectation of privacy in garbage under New Mexico
Constitution), aff’d on other grounds, 329 P.3d 689, 698–99 (N.M. 2014);
Morris, 680 A.2d at 96 (majority opinion) (“The Vermont Constitution does
not require the residents of this state to employ extraordinary or unlawful
means to keep government authorities from examining discarded private
effects.”); State v. Boland, 800 P.2d 1112, 1116–17 (Wash. 1990) (en banc)
(rejecting Greenwood under privacy clause of Washington Constitution,
with four justices dissenting). None of these decisions relied on the
rationale adopted today—if a private citizen can’t do it, neither can a police
officer. I don’t find those cases persuasive.
The New Hampshire, Vermont, and Washington decisions expressly
relied on unique privacy clauses or other textual provisions not found in
the Iowa or Federal Constitutions. Goss, 834 A.2d at 318–19; Morris, 680
A.2d at 93, 96; Boland, 800 P.2d at 1115–16. For that reason, in Storm
we declined to follow decisions from those states rejecting the automobile
exception. 898 N.W.2d at 153. The California case preceded Greenwood
and is factually distinguishable because “the trash can was within a few
108
feet of the back door of defendants’ home and required trespass for its
inspection.” Edwards, 458 P.2d at 718. By contrast, Officer Heinz never
walked across Wright’s yard to look in a trash container not yet placed out
for collection. His feet remained planted on the public alleyway.
The dissents in these trash cases are more persuasive. As Justice
Guy, who dissented in Boland, stated:
[O]ne who discards his trash and places it at curbside to be
picked up assumes the risk that the garbage collector may be
an agent of the police or may permit the police to examine the
unconglomerated trash once it is picked up.
800 P.2d at 1123 (Guy, J., dissenting). Even if under the majority’s
trespass theory an officer can’t reach over the property line into a garbage
can, “[p]olice merely have to wait until the trash is carried a few feet further
than the curb and is emptied into the collection bin of the garbage truck
before engaging in a warrantless search.” Id. “Collectors do not bear some
kind of fiduciary relationship with trash customers to make sure that their
trash remains inviolate.” Goss, 834 A.2d at 321 (Broderick, J., dissenting)
(quoting United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978)).
Justice Broderick noted:
In my opinion and in the overwhelming opinion of other
jurisdictions, as well as the United States Supreme Court, a
defendant’s subjective expectation of privacy in the contents
of his trash left for pickup adjacent to a public way is not
objectively reasonable.
Id. at 320. People know this, which is why they shred sensitive documents
and cut up credit cards before disposal. When “virtually every other court
that has considered the issue” finds no reasonable expectation of privacy
in discarded trash, one cannot conclude “general social norms” support a
privacy interest in that trash. Hempele, 576 A.2d at 818 (Garibaldi, J.,
dissenting).
109
The Wyoming Supreme Court unanimously considered and refused
to join these states that found greater protection for trash under their
constitutions and instead held the Wyoming Constitution did not require
a warrant to search trash. Barekman v. State, 200 P.3d 802, 809–10 (Wyo.
2009) (“[O]nce Mr. Barekman placed his trash in the barrel at the curb . . .
he evidenced the intent to relinquish any expectation of privacy he had in
the contents.”). We should reach the same conclusion as the Wyoming
Supreme Court.
For these reasons and those set forth in my colleagues’ dissents, I
am unable to join the majority decision.
Christensen, C.J., and Mansfield, J., join this dissent.
110
#19–0180, State v. Wright
MANSFIELD, Justice (dissenting).
Caliban: “Let it alone, thou fool; it is but trash.” William
Shakespeare, The Tempest act 4, sc. 1 [hereinafter The Tempest].
Caliban is right, it is but trash. To me, this case begins and ends
with the syllogism that trash is trash. It is nobody’s property; it has been
voluntarily abandoned. Nicholas Wright put his two garbage cans out for
collection next to a public alley without lids on them. If a private citizen
had pulled something out of those cans, Wright would have no cause of
action against that citizen. Yet somehow Officer Heinz violated his rights?
I respectfully dissent and would affirm the denial of the motion to
suppress.
To get to the odd result that trash set out for collection is
constitutionally protected, the majority purports to follow traditional
search and seizure principles. But the majority isn’t restoring article I,
section 8 to its original understanding. Instead, it bobs and weaves
through five divisions, with reasoning as ephemeral as a spirit summoned
by Ariel.
In reality, the majority doesn’t adhere to traditional search and
seizure principles, which focus on property rights and reasonable
expectations of privacy. Rather, the majority fashions a brand new rule of
search and seizure: If a private citizen can’t do it, the police can’t do it
either.
It’s true that the reasonable-expectations-of-privacy branch of
Fourth Amendment jurisprudence has become more controversial in
recent years. Several members of the United States Supreme Court have
sought to pull back from reasonable expectations of privacy and restore a
more consistent emphasis on property rights. See, e.g., Carpenter v.
111
United States, 585 U.S. ___, ___, 138 S. Ct. 2206, 2238–44 (2018) (Thomas,
J., dissenting); id. at ___, 138 S. Ct. at 2264–68 (Gorsuch, J., dissenting).
But no respected jurist, to my knowledge, has heretofore said that the
fundamental rule is: “If a private citizen can’t do it, law enforcement can’t
do it as well.”
The majority’s approach disregards the plain text of article I, section
8. That section protects “[t]he right of the people to be secure in their
persons, houses, papers and effects.” Iowa Const. art. I, § 8 (emphasis
added). Something that you’ve voluntarily thrown away is no longer your
effect.
The majority’s approach also completely fails to deal with standing.
Obviously, private citizens cannot enter other people’s motel rooms
without permission. But when a sheriff’s deputy did so, we upheld the
warrantless entry because the defendant had not actually rented the room.
See State v. Brooks, 760 N.W.2d 197, 206 (Iowa 2009). We said, “A
defendant challenging a search and seizure occurring in the motel room of
a third person must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is reasonable.” Id.
at 205. Because the defendant lacked standing to challenge the search,
his motion to suppress was properly denied. Id. But under the majority’s
newly hatched rule, the search would be no good, because cops cannot do
what private citizens cannot do.
This case could be viewed through the lens of standing. Once Wright
put his trash out for collection along the public alley, he lost standing to
complain about what happened to it. See State v. Bumpus, 459 N.W.2d
619, 625 (Iowa 1990) (“Once an individual voluntarily abandons property
he or she no longer has standing to challenge any search or seizure that
may be made.”).
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In short, far from being faithful to Blackstone, Coke, Story, or any
other venerable source, the majority’s standard is its own home brew. All
to protect trash! Instead of the majority’s standard, I would follow existing
United States Supreme Court and Iowa precedent. I would also apply
traditional property law, which makes clear that Wright no longer had a
legally protected interest in his trash when he put the open garbage cans
out for pickup.
I. There Is No Constitutionally Protected Interest in Trash Set
Out for Collection; This Case Should Be Decided Based on Traditional
Property Law.
California v. Greenwood of course resolves any claim that the search
of Wright’s trash violated his Fourth Amendment rights. See 486 U.S. 35,
37, 108 S. Ct. 1625, 1627 (1988). At the request of the police, the regular
trash collector picked up Greenwood’s trash only and turned it over to the
police. Id. This allowed the police to obtain evidence of narcotics use and
grounds for a search warrant. Id. at 38, 108 S. Ct. at 1627. The Supreme
Court sustained the constitutionality of the trash pull, reasoning that
Greenwood had no reasonable expectation of privacy in his trash placed
on the street for collection. Id. at 40–41, 108 S. Ct. at 1628–29.
Without incident or objection, Greenwood has been followed under
the Iowa Constitution for the last thirty-three years. See also State v.
Skola, 634 N.W.2d 687, 690–91 (Iowa Ct. App. 2001) (applying the
Greenwood analysis under both the United States and Iowa Constitutions
to uphold a police search of the defendant’s garbage); State v. Henderson,
435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988) (same).
Admittedly, Greenwood has come under criticism for its reliance on
reasonable expectations of privacy. See Carpenter, 585 U.S. at ___, 138
S. Ct. at 2266 (Gorsuch, J., dissenting). I agree that reasonable
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expectations can be a squishy concept. But reverting to traditional
principles of property law leads to the same result. Trash that you’ve
abandoned is no longer your property. When you turn it over to the trash
collector, this isn’t a bailment, it’s an abandonment.
The Fourth Amendment and article I, section 8 don’t prohibit
examining other people’s lives. They protect people against unreasonable
searches and seizures of “their persons, houses, papers, and effects.”
Garbage that has been abandoned at a publicly accessible spot is none of
those things. It has ceased to be anything in which the discarder has any
legal interest.
Let’s go back to an earlier Supreme Court case that preceded
Greenwood. In Abel v. United States, the Supreme Court relied on
abandoned property principles to uphold the retrieval of trash from a
wastebasket after the defendant had vacated a hotel room:
Nor was it unlawful to seize the entire contents of the
wastepaper basket, even though some of its contents had no
connection with crime. So far as the record shows, petitioner
had abandoned these articles. He had thrown them away. So
far as he was concerned, they were bona vacantia. There can
be nothing unlawful in the Government’s appropriation of
such abandoned property.
362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960). To the extent we find the
reasoning of Greenwood unsatisfactory for article I, section 8 purposes,
Abel works just fine.
Shifting the focus to Wright’s real property or his garbage cans
doesn’t change the outcome in this case. Officer Heinz didn’t set foot on
Wright’s land. The record shows that he reached into the garbage cans
from the public alley. Nor did he commit trespass to chattel by
unintentionally and briefly brushing against Wright’s garbage cans.
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Because the trash had been abandoned and Officer Heinz did not
commit a trespass on Wright’s real or personal property, there was no
violation of the Fourth Amendment or article I, section 8. There is no need
here to resort to Prospero’s books and magic; we can and should decide
this case simply on the basis of traditional property law. For all these
reasons, I would affirm.
I will now return to discuss the majority opinion in more detail.
Simply stated, the law “doth suffer a sea-change” in the majority opinion.
The Tempest, act 1, sc. 2.
II. The Majority’s Discussion of Traditional Property Law Is
Mistaken.
Invoking traditional property law, the majority claims that Wright
had not abandoned his trash. Therefore, according to the majority, Officer
Heinz physically trespassed on it.
This discussion needs to be read carefully because it has no actual
support in traditional property law. The entire basis for the majority’s
claim of nonabandonment and physical trespass is the City of Clear Lake
antiscavenging ordinance. That ordinance makes it unlawful for anyone
other than an authorized solid waste collector from “[t]ak[ing] or
collect[ing] any solid waste which has been placed out for collection on any
premises.” Clear Lake, Iowa, Code of Ordinances § 105.11(4) (2003). In
the majority’s view, that ordinance gave Wright an ongoing property right
in his trash even after he left it out for collection. I disagree.
The ordinance making it unlawful to rummage through other
people’s garbage cans is intended to prevent some of the adverse side
effects of rummaging, such as items being removed from garbage cans and
ending up as litter on the ground. It is not intended to confer some kind
of higher privacy status on garbage that it would not otherwise have. We
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know this because the stated purpose of this chapter is “to protect the
citizens of the City from such hazards to their health, safety and welfare
as may result from the uncontrolled disposal of solid waste.” Id. § 105.01.
It is also important to review the Clear Lake ordinance as a whole.
It reads,
Prohibited Practices.
It is unlawful for any person to:
1. Unlawful Use of Containers. Deposit refuse in any
solid waste containers not owned by such person without the
written consent of the owner of such containers.
2. Interfere with Collectors. Interfere in any manner
with solid waste collection equipment or with solid waste
collectors in the lawful performance of their duties as such,
whether such equipment or collectors be those of the City, or
those of any other authorized waste collection service.
3. Incinerators. Burn rubbish or garbage except in
incinerators designed for high temperature operation, in
which solid, semisolid, liquid or gaseous combustible refuse
is ignited and burned efficiently, and from which the solid
residues contain little or no combustible material, as
acceptable to the Environmental Protection Commission.
4. Scavenging. Take or collect any solid waste which
has been placed out for collection on any premises, unless
such person is an authorized solid waste collector.
5. Burn Barrels. Burn solid waste in any burn barrel
or other type of container.
6. Landscape Waste. Burn any landscape waste/yard
waste.
Id. § 105.11.
Ordinance 105.11(4) is thus part of a list of “Prohibited Practices.”
The entire list is aimed at activities that interfere with the orderly collection
of trash and lead to unsanitary conditions. Public health is the concern,
not private property. Hence, the Clear Lake ordinance doesn’t alter the
reality that trash is trash.
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Under the common law, abandonment involves an act of
abandonment plus intent, both of which were present here. See Benjamin
v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995) (en banc)
(“Property is abandoned when the owner no longer wants to possess it.
Abandonment is shown by proof that the owner intends to abandon the
property and has voluntarily relinquished all right, title and interest in the
property.” (citation omitted)); Abandonment, Black’s Law Dictionary (11th
ed. 2019) (defining “abandonment” as “[t]he relinquishing of a right or
interest with the intention of never reclaiming it”). An antiscavenging
ordinance is simply irrelevant to this inquiry.
If the majority’s analysis were right, then Abel was wrongly decided.
That sixty-one-year-old Supreme Court precedent, not discussed or even
cited by the majority, held that a defendant who threw away items in a
hotel room wastebasket had no basis to complain when they were retrieved
by a federal agent. See Abel, 362 U.S. at 241, 80 S. Ct. at 698. Of course,
private persons other than hotel employees could not have lawfully
accessed the wastebasket in Abel, just as here private persons other than
solid waste collectors could not have lawfully removed items from the trash
cans. But that did not affect the fact that the defendant had abandoned
his trash.
III. The Majority’s “Bedrock Constitutional Principle” Cannot
Withstand Scrutiny.
So we come to the real basis for the majority’s decision—its
supposed “bedrock constitutional principle” that the police under search
and seizure law can do nothing that a private citizen cannot do. Again,
the majority relies on the Clear Lake ordinance prohibiting anyone other
than an authorized solid waste collector from “[t]ak[ing] or collect[ing] any
solid waste which has been placed out for collection on any premises.”
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Clear Lake, Iowa, Code of Ordinances § 105.11(4). Ergo, the majority
insists, this means Officer Heinz violated Wright’s article I, section 8 rights
when he took something out of his garbage cans.
There is kind of a glib attractiveness to this position. But it’s wrong.
Does the majority believe that in performing their investigative duties, the
Clear Lake police cannot enter a city park between 11 p.m. and 5 a.m.?
See id. § 47.05(1) (prohibiting private citizens from doing this). That they
can’t park their patrol car in any spot where private citizens are not
allowed to park? See id. § 69.06 (same). That they can’t park for more
than two hours? See id. § 69.13 (same). That they can’t drive on a
barricaded street? See id. § 135.05 (same). Clearly, law enforcement can
do things that private citizens cannot do.
If the majority’s theory held water, a fleeing suspect who threw away
contraband could successfully file a motion to suppress if law enforcement
picked up the contraband from a spot that private citizens are technically
not permitted to enter. After all, that is essentially the majority’s theory
in this case.
IV. The Majority’s Selective Quotations and Long Historical
Discursions Do Not Support Its Asserted Bedrock Constitutional
Principle.
The majority’s quotations to support its “cops can’t do what private
citizens can’t do” rule are taken out of context. Consider the majority’s
treatment of Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013). The
majority portrays the case as an illustration of its “cops can’t do what
private citizens can’t do” rule of law. But the case was actually decided
based on traditional property rights. Law enforcement brought a drug-
sniffing dog onto the porch of the defendant’s home to conduct an
extensive—and successful—sniff. Id. at 4, 133 S. Ct. at 1413.
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The Supreme Court resolved the case based on property principles,
which made the case “straightforward.” Id. at 5, 133 S. Ct. at 1414. The
Court explained,
The officers were gathering information in an area
belonging to Jardines and immediately surrounding his
house—in the curtilage of the house, which we have held
enjoys protection as part of the home itself. And they gathered
that information by physically entering and occupying the
area to engage in conduct not explicitly or implicitly permitted
by the homeowner.
Id. at 5–6, 133 S. Ct. at 1414. Later in the opinion, the Court discussed
what “any private citizen might do” when entering the defendant’s
property, not because that was the underlying principle but because it
illustrated the scope of the common law property right that anchored the
Court’s decision. Id. at 8, 133 S. Ct. at 1416 (quoting Kentucky v. King,
563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011)).
The majority’s quick take on Caniglia v. Strom, 593 U.S. ___, 141
S. Ct. 1596 (2021), also oversimplifies its meaning. In that case, as the
majority notes, the Court again acknowledged that “officers may generally
take actions that ‘any private citizen might do’ without fear of liability.” Id.at ___, 141 S. Ct. at 1599 (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at
1416). But the converse isn’t true. That isn’t all officers may do. Indeed,
the Caniglia Court presented this as an additional warrant exception, not
the only one. See id. at ___, 141 S. Ct. at 1599.
The majority also provides some musty legal history. These include
a dissertation on the early Iowa caselaw on search and seizure. I am
uncertain what purpose this narrative serves. None of the cases involve
trash, none of the cases are difficult, and we would not decide the legality
of the searches any differently under current search and seizure law.
Today, as in 1859, a sheriff cannot seize someone’s property by pretending
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to have a writ of attachment he does not have. See Pomroy & Co. v.
Parmlee, 9 Iowa 140, 147 (1859). Today, as in 1904, a sheriff needs a
warrant to search a home. See McClurg v. Brenton, 123 Iowa 368, 371–
72, 98 N.W. 881, 882 (1904). These cases do not prove the majority’s claim
of a bedrock constitutional principle.
V. Recasting the Asserted Bedrock Constitutional Principle as
a Rule of “Trespass” Does Not Advance the Majority’s Analysis.
In footnote 5, the majority tries to recast its bedrock constitutional
principle as one of trespass law. According to the majority, Officer Heinz
committed a trespass. Yet footnote 5 freely concedes that Officer Heinz
would not have committed a trespass at common law. Instead, the
majority maintains that the Clear Lake ordinance redefined trespass.
This is an intriguing argument, but if I were Officer Heinz I would
not be concerned that the majority “did bass my trespass.” The Tempest,
act 3, sc. 3.
For one thing, under traditional search and seizure principles, what
matters is whether the defendant had a property right as to which the
defendant committed a common law trespass. United States v. Jones, 565
U.S. 400, 405, 132 S. Ct. 945, 949 (2012) (“[O]ur Fourth Amendment
jurisprudence was tied to common-law trespass, at least until the latter
half of the 20th century.”) (Scalia, J.). Clear Lake did not purport to
redefine property rights or common law trespass, nor would Clear Lake
have had the power to do so. See Iowa Code § 364.1 (2017). As I have
explained, the antiscavenging ordinance didn’t give Wright a legal
entitlement to that which he had already abandoned, nor would it have
given him a legal right to sue anyone. Footnote 5 adds nothing to the
majority opinion, except to make its central holding more elusive. There
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is a critical difference, glossed over by the majority, between a municipal
health and safety ordinance and traditional state property law.
VI. Near the End of Its Opinion, the Majority Abandons Its
Bedrock Constitutional Principle and Resorts to Its Own Mistaken
Reasonable Expectations Analysis.
One possible saving grace with the majority’s decision is that
municipalities can avoid its effects simply by changing their ordinances.
Repeal the ordinance forbidding private citizens from “scavenging” trash,
and trash pulls by law enforcement will become lawful once again.
Or maybe not. About seven-eighths of the way through its opinion,
the majority backtracks. That is when the majority tells us, “Of course,
this is not to say article I, section 8 rises and falls based on a particular
municipal law.” So much, I guess, for bedrock constitutional principle. At
this point, the majority embraces the “reasonable expectation of privacy”
perspective it had previously disparaged.
However, the majority doesn’t opt for the settled Iowa law on
reasonable expectations of privacy and trash pulls, as set forth in two
published decisions of our court of appeals. Instead, it adopts the views
expressed en passant by Justice Gorsuch in his Carpenter dissent.
Notably, in a paragraph of that dissent, Justice Gorsuch offers a brief
critique of Greenwood. See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266.
The majority’s reliance on Justice Gorsuch is unpersuasive to me.
First, I think Justice Gorsuch’s assessment of social norms is wrong. See
id. at ___, 138 S. Ct. at 2266 (“I doubt, too, that most people spotting a
neighbor rummaging through their garbage would think they lacked
reasonable grounds to confront the rummager.”). In many neighborhoods,
people would not think twice about someone removing something from a
garbage can after it has been set out for collection. The person violating
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the social norm would be the person confronting the scavenger, not the
scavenger.
Second, it’s odd for the majority to invoke Justice Gorsuch on
reasonable expectations because he was actually arguing against such an
approach. His main point was that reasonable expectations had “yielded
an often unpredictable—and sometimes unbelievable—jurisprudence.” Id.at ___, 138 S. Ct. at 2266.
Here lies my one point of agreement with the majority. In analyzing
article I, section 8, it might be better if we focused more on traditional
property law than on reasonable expectations of privacy (although both
sources support the lawfulness of the trash pull in this case). That being
said, the majority’s “rough magic,” The Tempest, act 5, sc. 1, bears no
resemblance to traditional property law.
Trash is as old as Shakespeare’s time, and we should not be making
up new search and seizure law to deal with it.
And if we are going to be devising new law, we should at least be
direct, open, and consistent about it—all areas where the majority falls
well short. From page to page, the majority opinion shifts ground. One
moment, according to the majority, the antiscavenging ordinance is
dispositive. Then, it isn’t. At first this is a case about police being unable
to do what private citizens can’t do. Then it’s a case about traditional
property law. Then it’s a case about reasonable expectations. According
to the majority, the Iowa Constitution has a fixed, original meaning. Until
it doesn’t.
The majority opinion “seeks to hide itself.” The Tempest, act 3, sc.
1. I respectfully predict it will have a short life as a precedent.
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VII. The Special Concurrence Does Not Add to the Force of the
Majority’s Arguments, and in Some Ways Undermines Them.
The special concurrence says almost nothing about the issue
actually before this court. Instead of providing pertinent legal analysis on
trash removals, the special concurrence retells a story about search and
seizure that its author has already told in prior opinions. See, e.g., State
v. Brown, 930 N.W.2d 840, 873–99 (Iowa 2019) (Appel, J., dissenting);
State v. Short, 851 N.W.2d 474, 481–93 (Iowa 2014).
The special concurrence wants to make a point about methodology.
The special concurrence is concerned about excessive reliance on the
original meaning of constitutional provisions, especially when there is
“modern technology.” According to the special concurrence:
“[C]onsideration must be given to the evolving precedent interpreting open-
ended constitutional provisions and to contemporary contexts and public
attitudes.”
But these justifications for the special concurrence seem
inadequate. Trash cans are not modern technology. And what does it
mean to say that precedents can evolve, that courts get to consider
contemporary contexts, and that public attitudes can be taken into
account? Such statements may describe how judges act, but they aren’t
methodologies.
I prefer to rely on the sound precedent set forth in Abel, Greenwood,
Skola, and Henderson. Under a property rights approach as discussed in
Abel, Wright had abandoned his trash and Officer Heinz committed no
trespass by removing items from the open cans left out for collection.
Under a reasonable expectations approach as discussed in Greenwood,
Skola, and Henderson, Wright had no reasonable expectation of privacy in
trash cans put out for collection.
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It is noteworthy that the special concurrence holds out Justice
Frankfurter for particular praise in the area of search and seizure. See
Brown, 930 N.W.2d at 879 (describing Justice Frankfurter as one of two
“leading Court historians on search and seizure”); Short, 851 N.W.2d at
497, 503, 505–06 (commenting favorably on Justice Frankfurter’s Fourth
Amendment approach and quoting from him repeatedly).
I would follow Justice Frankfurter’s example here. Notably, Justice
Frankfurter wrote the decision in Abel. See 362 U.S. at 218, 80 S. Ct. at
686. In upholding the trash pull, Justice Frankfurter concluded, “There
can be nothing unlawful in the Government’s appropriation of such
abandoned property.” Id. at 241, 80 S. Ct. at 698.
For the reasons stated in this dissent and the separate dissents of
my two colleagues, I would affirm Wright’s convictions and sentence.
Christensen, C.J., and Waterman, J., join this dissent.