State of Iowa v. Jesse Jon Harbach ( 2024 )

IN THE SUPREME COURT OF IOWA
No. 22–0162
Submitted October 10, 2023—Filed February 16, 2024
STATE OF IOWA,
Appellant,
vs.
JESSE JON HARBACH,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Delaware County, Monica Zrinyi
Ackley, Judge.
A criminal defendant seeks further review of the court of appeals decision
reversing the district court’s suppression of evidence following a Franks v.
Delaware hearing. COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which Christensen, C.J.,
McDonald, and May, JJ., joined. Waterman, J., filed a dissenting opinion, in
which Mansfield and McDermott, JJ., joined.
Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellant.
Martha Lucey, State Appellate Defender, and Maria Ruhtenberg, Assistant
Appellate Defender, for appellee.
2
OXLEY, Justice.
The law favors warrants. And when a neutral judge issues a warrant based
on an officer’s sworn affidavit detailing facts that support probable cause, that
affidavit is presumed to be true. Therefore, a defendant seeking to exclude facts
included in a warrant application as untrue must not only show the facts to be
false but must also show that the false statements were either included
(1) intentionally to mislead the issuing judge, or (2) with reckless disregard for
whether they would be misleading.
In this case, an officer investigating a one-vehicle rollover accident sought
a warrant for a blood draw from the driver, who was taken to the hospital. The
warrant was granted, and the subsequent blood draw revealed
methamphetamine but no alcohol. The driver moved to suppress evidence from
the blood draw, which the district court granted. The district court relied on the
officer’s bodycam video to conclude that the officer lied when he claimed he could
smell alcohol on the defendant and that the defendant’s eyes were blurry and
his speech slurred. Excising those statements from the warrant application
under Franks v. Delaware, see 438 U.S. 154, 155–56 (1978), the district court
concluded the remaining statements about the accident were insufficient to
establish probable cause to issue a warrant and granted the motion to suppress.
But a bodycam video is not a de novo review for probable cause based on
everything the officer knows. The Franks v. Delaware standard sets a high bar
for concluding that an officer intentionally or recklessly included false
information in an affidavit to support reconsidering whether the neutral
magistrate reviewing the warrant application properly issued the warrant. And
when intentionally false statements are properly excised under the Franks
standard, the reviewing court is limited to reviewing the remaining facts included
3
in the warrant application to determine whether the warrant was supported by
probable cause.
Applying the proper standard, we conclude the warrant affidavit
established probable cause to support the warrant, and we reverse the district
court’s order suppressing the evidence.
I. Background.
Around 5:30 p.m. on May 21, 2021, Jesse Harbach was driving near Delhi,
Iowa, when he was thrown from his truck in a one-vehicle rollover accident.
When Deputy Mitch Knipper arrived on the scene, Harbach was lying on a
backboard receiving medical treatment. Knipper questioned Harbach about the
accident and whether he had been drinking. Based on his observations, Knipper
applied for a warrant to obtain “[a] blood, urine, and/or breath specimen from”
Harbach. A judge granted the warrant application for a blood draw.
Harbach was taken to Manchester Regional Medical Center, where he was
originally treated. Deputy Knipper informed the Manchester medical center of
the warrant, but a blood draw was not taken at that time because Harbach was
“uncooperative and resistant,” and medical personnel warned of additional
internal injuries if they continued their attempt to take the blood draw. Harbach
was then airlifted to St. Luke’s Hospital in Cedar Rapids.
Knipper applied for a second search warrant directed to St. Luke’s
Hospital. The accompanying affidavit described the one-vehicle rollover accident
as occurring at 5:30 p.m. on a May afternoon: “There were skid marks from the
defendant’s vehicle approaching the intersection, and skid marks around the
corner of the intersection. The vehicle then entered the ditch and rolled at least
one time, landing on its top.” Knipper also checked boxes on the preprinted form,
identifying the following observations of impairment and results of field sobriety
tests:
4
Based on this application, a second warrant was issued, and a blood draw was
taken from Harbach at St. Luke’s Hospital in Cedar Rapids approximately three
hours after the accident. The blood sample was sent to the Department of
Criminal Investigation (DCI) lab. The DCI report identified 634 NG/ML of
methamphetamine in Harbach’s blood but no alcohol. Harbach was
subsequently charged with operating while intoxicated in violation of Iowa Code
§ 321J.2 (2021).
Harbach filed a motion to suppress evidence obtained from the blood draw,
which asserted the deputy’s application was based only on his claims that he
smelled alcohol and observed Harbach with bloodshot eyes and slurred speech.
Noting that the DCI test results of the blood draw reported no alcohol, Harbach
argued that Knipper’s allegation that he smelled alcohol was false, leaving
inadequate facts to support issuing the warrant. In response, the State argued
that Harbach could not establish that the deputy intentionally made false
5
statements or that a material statement made by the deputy was “false, whether
intentional or not,” quoting State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).1
The district court held a suppression hearing on January 4, 2022. At the
hearing, Deputy Knipper testified about his observations at the scene of the
accident and his statements in the search warrant application. Knipper testified
that Harbach was receiving medical treatment near the wrecked vehicle when he
arrived at the scene. Knipper briefly spoke with Harbach, who confirmed he was
the only person in the vehicle. Harbach mentioned he had an issue with his
brakes, and he thought the truck had rolled on top of him. Knipper spoke with
Harbach a second time while he was receiving medical treatment in the back of
an ambulance. Knipper asked Harbach if he had been drinking, but, according
to Knipper, “he was not very forthcoming with any answers.” Knipper testified
that he could only smell gasoline near the accident scene, but inside the
ambulance, he observed that Harbach “had watery, bloodshot eyes, his speech
was somewhat, somewhat mumbled and slurred, and I detected the odor of
alcoholic beverages coming from his person.”
Knipper’s bodycam video was admitted into evidence and viewed by the
district court during the suppression hearing. The video showed that when
Knipper arrived at the scene, Harbach was already strapped to a backboard,
receiving medical treatment, and wearing a neck brace. Harbach had visible
injuries to his face and was in obvious pain anytime he was moved. Paramedics
and nearby witnesses told Deputy Knipper that Harbach had swerved to avoid
an Amish buggy. Witnesses stated that they heard tires squealing and saw an
Amish buggy in the road but that the buggy driver had left the scene. Knipper
1This is a misstatement of the law. The State’s resistance quoted a part of Groff discussing
State v. Boyd, which, as discussed below, we overruled in Groff. See 323 N.W.2d at 208
(overruling State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974)).
6
can be heard on the video telling two other officers that he could only smell
gasoline by the scene but that he’s “gonna guess it’s a 55.”2
Knipper followed as paramedics moved Harbach to the back of an
ambulance. Knipper can be heard on the bodycam video asking Harbach his date
of birth and where he was driving from. Harbach provided his birthdate but then
responded, “I can’t talk right now. It hurts to talk.” One of the medical personnel
asked Knipper to move because he was in the way of Harbach’s treatment.
Knipper left the ambulance briefly, but then he re-entered and asked Harbach
again where he had been coming from. In response to being asked a second time,
Harbach shook his head and told a paramedic: “Tell this guy to quit questioning
me; it hurts.” Knipper asked Harbach if he had anything to drink that day.
Harbach did not immediately answer but eventually responded that he did not.
The State also offered into evidence a medical report from the Manchester
medical center showing an ethanol level of “42.”
That report was not sent to DCI, and Knipper testified that he did not know what
the ethanol level meant or whether it translated to blood alcohol content level.
The State argued it translated to a .042 BAC reading.
Relying on its review of the bodycam video, the district court concluded
that Harbach’s speech was not slurred and he did not have bloodshot or watery
eyes. The court also took issue with Knipper’s statement in the affidavit that he
smelled alcohol on Harbach, concluding, “It is unclear what [Knipper] could
2The parties do not dispute that “55” is a reference to a suspected drunk driver. See Ass’n
of Pub. Commc’ns Officers, Official Ten Code List, http://www.njsoa.org/pdfs/tencode.pdf
[https://perma.cc/ZXC3-SLMP].
7
smell in the ambulance given all the medical supplies contained inside and the
equipment being used on the Defendant.” Noting that the St. Luke’s blood draw
did not show any alcohol in Harbach’s system, the district court surmised: “It
begs the question then, how could one smell what is not present?” After
extracting the “offensive statements” from the warrant application, the district
court concluded that the remaining content proved only an accident, not
Knipper’s assumption that the defendant had been drinking. Where bystanders
told Knipper they heard squealing tires and saw the Amish buggy but “[t]here
was no indicia of drinking about the person of the Defendant,” probable cause
was lacking to support the warrant for a blood draw. As a result, the district
court granted Harbach’s motion to suppress and struck the evidence gathered
pursuant to the warrant.
The State sought discretionary review of the district court’s suppression
order. We granted the application and transferred the case to the court of
appeals. On its de novo review, the court of appeals determined the only
statement that was shown to be intentionally false or misleading was Knipper’s
assertion on the preprinted form that Harbach refused the preliminary breath
test and horizontal gaze nystagmus (HGN) test. Setting those facts aside, the
court of appeals concluded that the remaining content established probable
cause for issuance of the warrant and reversed the district court’s suppression
order.
We granted Harbach’s application for further review to determine whether
the district court properly applied the Franks v. Delaware standard for reviewing
a warrant affidavit.
II. Analysis.
A search warrant may issue only upon a showing of probable cause. See
U.S. Const. amend. IV; Iowa Const. art. I, sec. 8. We review suppression rulings
8
raising constitutional questions de novo. State v. Bracy, 971 N.W.2d 563, 567
(Iowa 2022). “However, we do not make an independent determination of
probable cause . . . .” Id. (quoting State v.McNeal, 867 N.W.2d 91, 99 (Iowa
2015)). When a defendant challenges a warrant as lacking probable cause, “we
review the information actually presented to the judge and determine whether
the issuing judge had a substantial basis for concluding that probable cause
existed.” State v. Baker, 925 N.W.2d 602, 613 (Iowa 2019); see also Bracy, 971
N.W.2d at 564 (describing our standard of review as deferential).
The general procedure for obtaining a search warrant is as follows: an
officer submits a sworn affidavit providing a recitation of facts to the court, and
a judge determines whether those facts establish probable cause to issue a
search warrant. The affidavit’s purpose is “to provide a neutral and detached
magistrate with objective facts upon which [s]he can make an independent
determination of probable cause.” Groff, 323 N.W.2d at 210. From the
information provided in the affidavit, the issuing court makes a “practical,
common-sense” determination of whether it would convince a person of
reasonable prudence that evidence of a crime could be located at the place to be
searched. Baker, 925 N.W.2d at 613 (quoting State v. Gogg, 561 N.W.2d 360,
363 (Iowa 1997)).
A defendant can challenge a warrant by claiming the facts recited in the
affidavit do not establish probable cause that the search will reveal evidence of
a crime. See Bracy, 971 N.W.2d at 568. When a defendant has reason to believe
the warrant application contains false or misleading statements, he can also
challenge the warrant by challenging the veracity of the application. See Franks,
438 U.S. at 155–56; Baker, 925 N.W.2d at 614; Groff, 323 N.W.2d at 209.
Affidavits included in search warrant applications are presumed to be true.
Groff, 323 N.W.2d at 209. To overcome that presumption, a defendant
9
challenging the veracity of a warrant application must make a “substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant
affidavit.” Franks, 438 U.S. at 155–56; see also Baker, 925 N.W.2d at 614 (noting
the preliminary showing must generally be made under oath). If that preliminary
showing is made, the court holds a hearing—referred to as a “Franks hearing”—
where evidence may be presented to show whether the statements are knowingly
or recklessly false. Franks, 438 U.S. at 155–56. A defendant may also challenge
the warrant application as intentionally omitting material facts that, if included,
would cast doubt on the existence of probable cause. State v. Green, 540 N.W.2d
649, 656 (Iowa 1995).
If the court finds that any misstatements or material omissions were made
either intentionally or with reckless disregard for the truth, the false statements
are excised, the omitted statements are added, and the affidavit’s remaining
content is examined to determine whether it establishes probable cause to
support issuing the search warrant. Id. Although we apply a preponderance of
the evidence standard to determine whether the defendant has shown the officer
intentionally or recklessly included false statements, see Groff, 323 N.W.2d at
206–07 (adopting the Franks standard, which applied a preponderance of the
evidence standard), “[a] showing of deliberate or reckless falsehood is ‘not lightly
met,’ ” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quoting United
States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987)). We adopted the Franks
standard for testing claims of veracity in search warrant affidavits in State v.
Groff, where we overruled our precedent that allowed a warrant based on
materially false statements to be invalidated even when the misstatements were
a product of a good faith or innocent mistake. See 323 N.W.2d at 208 (overruling
State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974)). We adopted the Franks
10
standard because it “more properly promotes the deterrence function of the rule
by permitting veracity challenges only to those false statements that were
tendered in bad faith by the affiant.” Id. Thus, “excision . . . should occur only in
the situation described in Franks v. Delaware: when statements in the warrant
application were intentionally or recklessly false.” Bracy, 971 N.W.2d at 565.
A. District Court Proceedings and Analysis. In his motion to suppress,
Harbach alleged that the affidavit “contained a false allegation that the Deputy
smelled alcohol, when the test results ultimately showed that there was no
alcohol in the blood.” He made no allegation—and offered no proof—of deliberate
falsehood or reckless disregard for the truth of the statements that would entitle
him to a hearing. See Groff, 323 N.W.2d at 209 (describing the preliminary
showing required to mandate an evidentiary hearing). Although the State waived
any procedural challenges by not objecting to the lack of a preliminary showing,
it did challenge whether any purportedly false statements contained in the
affidavit were made intentionally or with reckless disregard for the truth.
Therefore, the ultimate veracity issue was not waived by the State.
Upon concluding the warrant contained “false statements,” the district
court proceeded to analyze whether the affidavit supported probable cause
without the false statements. The district court found that Deputy Knipper
“made an assumption as to the reason for the accident” and that his “attitude
adjusted to conclude the Defendant was drinking” when he learned the
defendant’s identity. But these findings do not indicate whether the challenged
statements were intentionally or recklessly false. The district court erred by
excising any statements it concluded were false without first finding that they
were made recklessly or intentionally. The district court’s analysis seemingly
applied the more relaxed standard under State v. Boyd that we overruled in Groff
when we adopted the Franks framework. See Groff, 323 N.W.2d at 208. We apply
11
the correct legal standard to determine whether any statements in the
application were in fact false, and if so, whether they were made with an intent
to mislead or with reckless disregard for the truth. See State v. Seager, 341
N.W.2d 420, 425 (Iowa 1983) (recognizing that the district court applied the Boyd
standard and moving on to apply Groff on appeal).
B. Deliberate or Recklessly False Statements. In challenging the
veracity of a warrant application, the defendant must identify the specific
portions of the affidavit claimed to be false. Groff, 323 N.W.2d at 209. In his
motion to suppress, Harbach argued that Knipper’s statement in the affidavit
that he observed the smell of alcohol was false. Additionally, he argued that
Knipper’s observations of bloodshot and watery eyes were a result of his injuries,
not intoxication, which made Knipper’s omission of Harbach’s condition from the
accident a material misrepresentation that casts doubt on the existence of
probable cause.
Because the statement must be both (1) false within the meaning of Franks
and (2) made with intent or reckless disregard for the truth, we often address the
issues together. Even if a statement is shown to be false, it will only be excised
from the affidavit if made intentionally or with reckless disregard for the truth.
See, e.g., id. at 210–12 (concluding that even if an affidavit included a statement
that the defendant owned—rather than farmed—a field where plants appearing
to be marijuana were grown, the statement could not be excised where the
evidence established only that the officer was negligent in not verifying certain
information included in a warrant application). We consider each of the
statements Harbach claims to be false.
1. Smell of alcohol coming from Harbach. Harbach argues that the
toxicology report showing no alcohol in his blood proves that Knipper lied about
smelling alcohol on Harbach in the ambulance. The district court agreed,
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surmising, “[H]ow could one smell what is not present?” As an initial matter, we
reject the State’s argument, premised on Justice Stevens’s dissent in Illinois v.
Gates, see 462 U.S. 213, 293 (1983) (Stevens, J., dissenting) (explaining that
“subsequent events may [not] be considered in evaluating the warrant”), that the
district court should not have considered matters outside the application when
determining the search warrant’s validity. There is a difference between the
analysis for determining whether probable cause supported the warrant (which
is limited to the facts before the issuing judge) and the analysis for determining
the truthfulness of statements in a warrant application. See Green, 540 N.W.2d
at 657 (“[I]n determining whether misrepresentation was intentional or material
the surrounding facts are relevant and may be considered.” (quoting State v.
Paterno, 309 N.W.2d 420, 424 (Iowa 1981))). Thus, the district court properly
considered the results of Harbach’s blood draw in determining whether Knipper’s
statement that he smelled alcohol was false.
The district court found that Knipper “made an assumption as to the
reason for the accident,” and from that observation, it concluded that Knipper
must have lied about smelling alcohol: “When he found out who the driver was,
the deputy’s attitude adjusted to conclude [Harbach] was drinking.” Even so, it
is an officer’s job to investigate an accident scene, which may include probing
into any suspicions arising from their prior history with an individual. Deputy
Knipper’s suspicion that Harbach was drinking based on his prior experience
with Harbach alone would not have provided probable cause to support a
warrant. But that prior knowledge did alert Knipper to look for signs of
intoxication, which would have included ascertaining whether Harbach smelled
of alcohol. That his suspicions were heightened once he learned Harbach’s
identity does not support the conclusion that Knipper falsified statements in the
affidavit.
13
The district court relied on the blood draw results to determine that
Knipper lied about smelling alcohol. But the results of the blood draw alone are
not enough to prove that the statement was intentionally or recklessly false. The
blood draw was taken after Harbach was airlifted from the Manchester medical
center to St. Lukes Hospital in Cedar Rapids, which Knipper testified was
approximately three hours after he observed the smell of alcohol. Given the
relatively quick dissipation of alcohol from the bloodstream, see, e.g., State v.
Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (holding that the natural dissipation
of alcohol provided exigent circumstances to support warrantless blood draw
following serious accident where “more than two and a half hours passed
between the time of the accident and the time Johnson’s blood was drawn”), the
fact that a blood draw taken hours later reported no alcohol does not establish
that Knipper lied when he said he smelled alcohol coming from Harbach, let
alone that any misstatement was intentional.
Based on its review of the bodycam video, the district court also discredited
Knipper’s claim to have smelled alcohol because he was only in the ambulance
for a short time and it was “unclear what [Knipper] could smell in the ambulance
given all the medical supplies contained inside.” But video footage sheds no light
on what an officer can smell. Officer Knipper had extensive training and
experience investigating OWIs, including what an alcoholic beverage smells like
on a driver’s breath. Knipper testified he was within a foot-and-a-half of Harbach
when he was inside the back of the ambulance. Harbach presented no evidence
that smells emanating from other medical supplies inside the ambulance were
so strong they would have prevented Knipper from smelling alcohol coming from
Harbach. Nor was there any evidence that the smell of medical supplies could be
mistaken for the smell of an alcoholic beverage such that the medical supplies
could have been the source of the alcohol Knipper smelled. And the district court
14
certainly couldn’t tell either of those things from viewing the bodycam footage.
Further, for purposes of determining whether Harbach showed that Knipper’s
statement that he smelled alcohol was in fact false, we cannot ignore that the
serum report from the Manchester medical center—taken much closer in time to
the accident—showed an ethanol level of 42. We can take judicial notice that an
ethanol level computes to a .042 blood alcohol content.3 That Knipper was
unaware of that fact is irrelevant, as he did not rely on that report to support the
warrant application. But it does refute the district court’s reliance on the later
lab report that showed no alcohol in Harbach’s blood three hours after the
accident to conclude that Knipper could not “smell what is not present.”
Even so, to the extent the district court was suggesting that Knipper’s
smell of alcohol could have been from medical supplies in the ambulance rather
than from Harbach’s person, that fact would not make the statement that he
smelled alcohol false. It would only make Knipper mistaken as to the source. But
a mistake does not rise to the level of an intentional or reckless falsehood. See
Groff, 323 N.W.2d at 210–12 (concluding that the officer’s negligence in failing
to verify information included in a warrant application did not satisfy the Franks
requirement that the statement be included intentionally or with reckless
disregard for the truth). That other explanations might exist for an officer’s
observations is insufficient to establish the statement’s falsity. See id. Harbach
failed to establish that Knipper’s statement that he smelled alcohol was false, let
alone that it was intentionally false, and it should not have been excised from
the warrant application.
3See Preeti Dalawari, Ethanol Level, Medscape (Nov. 19, 2019),
https://emedicine.medscape.com/article/2090019-overview?form=fpf
[https://perma.cc/G2PB-QEPF] (“To convert serum ethanol level to BAC, move the decimal point
3 places to the left. Example, a 100 mg/dL serum ethanol level is equivalent to a 0.10 (g/dL)
BAC.”).
15
2. Bloodshot, watery eyes and slurred, mumbled speech. Based on the
district court’s review of the bodycam video, it also concluded that Harbach did
not have bloodshot, watery eyes or slurred, mumbling speech. We acknowledge
that an officer’s bodycam footage can provide valuable information to a court
reviewing events that are otherwise only available through witness testimony. It
is tempting for a reviewing court to make its own determination of whether
probable cause exists to support a warrant after watching a bodycam video. But
that is not the purpose, nor the function, of a Franks hearing. As a general
matter, obtaining a warrant from a neutral judge is the preferred method of
obtaining evidence. In the context of challenges to a warrant affidavit—which
starts with a presumption of truthfulness—courts must be careful not to simply
conduct their own de novo review for probable cause based on what can be seen
on a bodycam video. See Gates, 462 U.S. at 236 (“[W]e have repeatedly said that
after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take
the form of de novo review. A magistrate’s ‘determination of probable cause
should be paid great deference by reviewing courts.’ ‘A grudging or negative
attitude by reviewing courts toward warrants’ is inconsistent with the Fourth
Amendment’s strong preference for searches conducted pursuant to a warrant,
[and] ‘courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a
hypertechnical, rather than a commonsense, manner.’ ” (second and third
alteration and omission in original) (quoting Spinelli v. United States, 393 U.S.
410, 419 (1969), abrogated in part on other grounds by Gates, 462 U.S. at 214,
and United States v. Ventresca, 380 U.S. 102, 108, 109 (1965))).
The district court determined that Knipper lied when he said Harbach’s
eyes were bloodshot and watery because it did not believe the video showed that.
While a good view of Harbach’s eyes in the video might have corroborated
Knipper’s observation, the video is not so clear or the angle so direct that one
16
could conclude that Harbach’s eyes were not in fact bloodshot such that Knipper
was lying when he made that statement in the affidavit. Again, it is not the
officer’s burden to corroborate his affidavit; it is the defendant’s burden to prove
the affidavit contains intentionally false statements. See Groff, 323 N.W.2d at
207–08. The same is true with respect to the district court’s belief that Harbach’s
speech was not slurred or mumbling. The audio from the bodycam is not so clear
to capture everything that Harbach said. And critically, the district court
conceded that “[a]t times [Harbach] was muttering,” so it agreed with the fact of
muttering speech. Nonetheless, the district court provided an alternate
explanation—that Harbach “was muttering due to the pain” as apparently
revealed by the fact that he was strapped down to a backboard in a neck brace.
Whether there was another explanation for muttered speech is a different issue
from whether the video shows that Knipper had to have been lying when he said
Harbach’s speech was slurred or mumbling.
Even though bodycam footage can be useful, courts should be careful in
relying on the footage when determining specific facts that are not easily
observable from the video. This is especially true in the context of Franks
challenges, where the statement need not only be false but must also be made
with intentional or reckless disregard for the truth. Small details such as
bloodshot or watery eyes are not clearly observable from the footage. The
bodycam video does not support the district court’s conclusion that Knipper was
lying when he stated that Harbach had bloodshot, watery eyes and that his
speech was slurred and mumbled.
3. Misrepresentation by omission. The Franks doctrine applies to
“situations involving the omission of crucial information from a warrant
application as well as the inclusion of inaccurate information.” State v. Poulin,
620 N.W.2d 287, 289 (Iowa 2000) (en banc). When a defendant challenges
17
omitted information, he must show “(1) that facts were omitted with the intent
to make, or in reckless disregard of whether they make, the affidavit misleading;
and (2) that the affidavit, if supplemented by the omitted information, could not
support a finding of probable cause.” United States v. Johnson, 75 F.4th 833,
841 (8th Cir. 2023) (quoting United States v. Conant, 799 F.3d 1195, 1200 (8th
Cir. 2015)). “Reckless disregard requires showing that the officer ‘must have
entertained serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information.’ ” Id. at 841–42 (quoting United
States v. Reed, 921 F.3d 751, 756 (8th Cir. 2019)); see also United States v.
Hines, 62 F.4th 1087, 1094 (8th Cir. 2023) (“[R]eckless disregard for the truth
may be inferred . . . only when the material omitted would have been clearly
critical to the finding of probable cause.” (omission in original) (quoting United
States v. Randle, 39 F.4th 533, 537–38 (8th Cir. 2022)).
Thus, a defendant may challenge the warrant application as deliberately
omitting a material fact that would cast serious doubt on the existence of
probable cause if it had been included. Green, 540 N.W.2d at 656. Upon
determining that the omissions were material and intentionally (or at least
recklessly) excluded to make the application misleading, the court then includes
that information in assessing whether the application establishes probable
cause. See Franks, 438 U.S. at 156; United States v. Buchanan, 167 F.3d 1207,
1210 (8th Cir. 1999).
An officer is not required to include all facts in the warrant application,
even those exculpatory to the defendant. See State v. Ripperger, 514 N.W.2d 740,
745 (Iowa Ct. App. 1994). The core inquiry is whether the issuing judge was
presented with sufficient evidence to determine whether probable cause existed
under the totality of the circumstances. Id. at 746. In State v. Ripperger, the
defendant argued the warrant application left out critical facts that tended to
18
show his innocence. Id. at 745. In that case, the defendant pointed to the officer’s
testimony that the officer “felt he had no duty to include facts in the warrant
application which tended to show that the suspect (Ripperger) was not guilty” to
establish that the officer had intentionally omitted material information. Id. Our
court of appeals concluded that the officer’s concentration on facts supporting
probable cause was not fatal to the warrant as long as the evidence presented
did not prevent the judge “from exercising his function of independently
reviewing the facts to determine whether probable cause existed.” Id.In State v. Green, officers obtained a warrant to search the defendant’s
home after his girlfriend, Rosemary McGivney, was reported missing. 540 N.W.2d
at 653. The warrant application in Green included a copy of a missing persons
report, the officer’s observations that McGivney’s car was present at Green’s
residence, Green’s refusal to allow officers to search his residence, and
information about a number of domestic abuse calls at the residence when Green
and McGivney lived together as facts to support probable cause. Id. at 655–56.
Green argued that the officer deliberately omitted Green’s assertion that he
bought McGivney’s car—an explanation for why it was in his garage—and that
the omission cast doubt on the existence of probable cause. Id. at 657. We
concluded that this omission was immaterial because the judge did not rely on
the car’s presence at Green’s house in determining whether probable cause
existed for the warrant, so the presence of an alternate explanation would not
have mattered. Id.
In district court, Harbach challenged the affidavit for omitting information
about his physical condition. Harbach pointed out that while the affidavit
included observations of impairment, such as bloodshot and watery eyes, it
omitted the fact that he suffered an eye injury as a result of the accident.
However, this assertion is not entirely accurate. Although Knipper did not specify
19
that Harbach had scrapes on his face, as can be seen in the bodycam footage,
he did state that Harbach had “injuries consistent with” being in a rollover
accident. That Harbach had scrapes around his eyes does not detract from the
fact that his eyes were bloodshot and watery, which provides evidence of
intoxication. Green and Ripperger establish that a warrant affiant need not
include all exculpatory information or facts that could provide an alternate
explanation for the stated observations. The observation of bloodshot and watery
eyes does not become misleading simply because there may be an alternate
explanation that was not explicitly included in the warrant application. The judge
only needs to receive the information necessary to determine whether probable
cause exists under the totality of the circumstances.
Furthermore, there is no indication that Knipper intentionally or recklessly
omitted information about Harbach’s physical condition in an attempt to mislead
the judge. On this point, we find the Michigan Court of Appeals decision in People
v. Sternberg, No. 217022, 1999 WL 33436061 (Mich. Ct. App. Sept. 3, 1999) (per
curiam), to be instructive. In that case, the trial court granted the defendant’s
motion to suppress her blood test results following a car accident because the
affidavit failed to include the officer’s observation that the defendant’s emotional
condition—not intoxication—may have caused her watery eyes and the omission
constituted a material misrepresentation. Id. at *1. The appellate court
disagreed, concluding that the defendant had not established that the officer
made this omission with intentional or reckless disregard for the truth. Id. at *2.
Rather, the officer testified it was unclear whether the defendant’s watery eyes
and flushed face were more closely related to the accident or her emotional
condition. Id.
At the suppression hearing, Deputy Knipper testified that he did not know
the physiological effects of car accidents on the human body when asked if it
20
was common for people to have bloodshot eyes following an accident. This does
not rise to the level of a deliberate omission of facts about Harbach’s physical
condition from the accident. The issuing judge knew that Harbach sustained
physical injuries because the warrant application stated that he had “injuries
consistent with being involved in a motor vehicle accident.” Knipper also
described the accident as a “one-vehicle rollover” and stated that the vehicle
rolled at least once, landing on its top. The deputy’s failure to include every detail
about Harbach’s injuries does not make the affidavit misleading.
We conclude that Knipper’s description of the nature of the accident and
his statement that Harbach suffered injuries consistent with being in a rollover
vehicle accident sufficiently apprised the issuing court of his condition. None of
the omitted information made the affidavit misleading.
4. Refusal to submit to preliminary tests. The warrant application stated
that Harbach “refused” to take a preliminary breath test or an HGN test. Harbach
did not challenge these statements in his motion to suppress, and the district
court did not consider whether Knipper’s assertions that Harbach refused those
tests were intentionally or recklessly false. The court of appeals nonetheless
reviewed the video and concluded that Knipper never asked Harbach to perform
either an HGN or a breath test, so his assertion that Harbach refused these tests
was intentionally or recklessly false. As a result, the court of appeals concluded
that statement should have been excised from the affidavit before assessing
whether probable cause was supported. It nonetheless concluded that even
without this information, the affidavit provided sufficient probable cause to issue
the warrant.
We question whether this issue is even properly before us. In his motion
to suppress, Harbach argued that Knipper’s observations that he smelled alcohol
and observed Harbach’s bloodshot eyes and slurred speech were false such that
21
Knipper lacked the requisite suspicion to even conduct field sobriety tests. But
Harbach never complained to the district court that he in fact was never
requested to take the tests. Nonetheless, like the court of appeals, we remove
these statements in determining whether there was probable cause to support
issuing the search warrant.
C. Probable Cause. After excising the information regarding Harbach’s
refusal to consent to preliminary tests, our task is to determine whether the
search warrant application on its face established probable cause to issue the
warrant. See ONeil v. United States, 966 F.3d 764, 771 (8th Cir. 2020) (explaining
that “only the information found within the four corners of the affidavit may be
considered” in assessing probable cause and holding that even after the false
information was excised, the remaining information contained in affidavit
supported probable cause (quoting United States v. Wells, 347 F.3d 280, 286 (8th
Cir. 2003))); see also Bracy, 971 N.W.2d at 567 (explaining that “we examine only
the information actually presented to the [issuing] judge” without “strictly
scrutiniz[ing] the sufficiency of the underlying affidavit,” which we interpret “in
a common sense, rather than a hypertechnical, manner,” and we “decide close
cases in favor of upholding the validity of the warrant” (first and second quoting
McNeal, 867 N.W.2d at 99, 100; third quoting Gogg, 561 N.W.2d at 364; and
fourth quoting Baker, 925 N.W.2d at 614)).
Even without considering the excised information regarding the refusal to
consent to testing, the remainder of the search warrant application established
probable cause. Harbach was involved in a single-vehicle accident on a sunny
day. The officer observed that he had bloodshot and watery eyes and that his
speech was slurred and mumbled. And most importantly, the officer smelled an
alcoholic beverage coming from his person. With respect to this last fact, contrary
to the district court and the dissent’s assertion, there is no evidence in this
22
record that that statement was false. Indeed, both the district court and the
dissent ignore the medical test taken closer to the time of the accident showing
Harbach had a blood alcohol content of .042. The remaining facts in the warrant
affidavit are sufficient to establish probable cause. See State v. Wenzel, 987
N.W.2d 473, 483 (Iowa Ct. App. 2022) (holding probable cause for a search
warrant was established based on the defendant’s bloodshot eyes, slurred
speech, poor driving, and rejection of field sobriety tests that were facts included
in the application); see also State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992)
(stating that the odor of alcohol on the defendant’s breath and bloodshot, watery
eyes is sufficient to support a finding of probable cause in a drunk driving
context (citing State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981))).
III. Conclusion.
The district court’s suppression order is reversed, and the case is
remanded for further proceedings consistent with this opinion.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT
REVERSED AND REMANDED.
Christensen, C.J., and McDonald and May, JJ., join this opinion.
Waterman, J., files a dissenting opinion, in which Mansfield and McDermott,
JJ., join.
23
#22–0162, State v. Harbach
WATERMAN, Justice (dissenting).
Imagine you find several pieces of rancid meat in your bowl of stew. Would
you remove them and keep eating or discard the entire bowl? The district court
correctly discarded the bowl. I would affirm the district court’s ruling granting
the defendant’s motion to suppress after the court found Deputy Knipper
intentionally or recklessly made materially false statements and omissions in his
warrant application. My colleagues in the majority, and on the panel of the court
of appeals, err by reversing that ruling. They strain to save the warrant
application despite its rancid pieces. Not me. Once all the false statements are
removed, the remainder falls short of establishing probable cause. I respectfully
dissent.
I’ll start with the facts. As the district court noted, Deputy Knipper’s
attitude changed when he learned the driver was Jesse Harbach. He jumped to
the conclusion that the accident involved drunk driving before he got close
enough to talk to Harbach. Remarkably, Deputy Knipper’s warrant application
never disclosed the fact that upon his arrival at the scene of the rollover accident,
Harbach was already strapped onto a stretcher with a neck brace. That omission
is materially misleading. The deputy’s own bodycam video captured his entire
interaction with Harbach and disproves material statements in his warrant
application. Here is where I land based on my own de novo review of the record,
including the video:
• Deputy Knipper wrote that Harbach refused the preliminary breath test
(PBT) and horizontal gaze nystagmus (HGN) test. Those tests were never
offered, and one cannot refuse a test that was never offered. As the court
of appeals determined, the deputy’s false statement regarding the test
24
refusals was made intentionally or recklessly. The majority concedes that
his statement must be excised under Franks.
• Deputy Knipper wrote that he smelled alcohol on Harbach’s breath. On
video, Deputy Knipper states twice he could only smell gasoline. Inside the
ambulance, Deputy Knipper never says aloud that he smelled alcohol.
Harbach’s subsequent blood test showed zero alcohol in his bloodstream.
As the district court stated, “[H]ow could one smell what is not present?” I
agree with the district court that the deputy’s statement about smelling
alcohol on Harbach was false and made intentionally or recklessly.
• Deputy Knipper checked boxes indicating Harbach had “bloodshot eyes”
and “watery eyes.” I agree with the district court that the video “does not
show a person with bloodshot or watery eyes.”
• Deputy Knipper wrote that Harbach “refused to answer any questions.”
(Emphasis added.) This statement, too, is false and made knowingly or
recklessly. In fact, Harbach volunteered his version of the accident: that
he swerved to avoid an Amish buggy, as independent witnesses confirmed
at the scene. And when Knipper asked him if he had anything to drink,
Harbach answered no. When pressed with more questions, Harbach
begged off due to his pain. Harbach had to be airlifted to Cedar Rapids for
treatment.
• Deputy Knipper checked boxes indicating Harbach had “slurred speech”
and “mumbling speech.” I agree with the district court that the video
disproves those claims.
I agree with the district court that once Deputy Knipper’s false or recklessly
untrue statements are excised from the warrant application, all that’s left is the
mere fact that Harbach was in an accident, injuring only himself. We have never
25
held that an accident alone is sufficient to establish probable cause. Do we want
any driver who gets in an accident to be subject to a forcible blood draw?
The district court, upon hearing Deputy Knipper testify in person at the
suppression hearing and after viewing the bodycam video, made factual findings
and credibility determinations. The district court found that Deputy Knipper
knowingly made false or recklessly untrue statements in his warrant application.
I reach the same conclusion after reviewing the transcript of his testimony and
watching the same video. While our appellate review of a Franks determination
is de novo, we can and should give weight to the district court’s credibility
determinations based on live testimony. State v. Baker, 925 N.W.2d 602, 609
(Iowa 2019) (“We give deference to the district court’s factual findings, but they
do not bind us.” (quoting State v. Scheffert, 910 N.W.2d 577, 581 (Iowa 2018)));
State v. Simpson, 528 N.W.2d 627, 634 (Iowa 1995) (en banc) (“We defer to the
trial court on matters of credibility of witnesses” who testify live at a Franks
hearing), overruled on other grounds by State v. Webb, 648 N.W.2d 72 (Iowa
2002). The majority fails to give appropriate deference to the district court’s
credibility and factual findings.
Instead, the majority is overly deferential to the contents of the warrant
affidavit, even after acknowledging part of it must be excised as false. And the
State’s appellate brief relies on “the cardinal rule that the court does not consider
matters that are subsequent to the warrant to determine the validity of the
issuance of the warrant.” It is true that when reviewing the magistrate’s issuance
of a search warrant, we consider only the information in the warrant application.
See State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995) (en banc) (“[A]ny probable
cause review in response to a motion to suppress must be made upon the basis
of the information presented to the magistrate at the time the warrant was issued
. . . .” (alteration in original) (quoting 1 Wayne R. LaFave, Search and Seizure: A
26
Treatise on the Fourth Amendment § 3.1(d) (2d. ed. 1987))). But in a Franks
hearing, new information outside the four corners of the application can and
should be considered on the issue of whether statements in the application are
false and whether false information was submitted intentionally or recklessly.
See United States v. Finley, 612 F.3d 998, 1003 n.7 (8th Cir. 2010) (“Refusing to
consider evidence from beyond the affidavit would contravene the purpose of a
Franks hearing and run contrary to common sense.”). In many cases, that
additional information includes the officer’s bodycam video and subsequent lab
results. As the Texas Court of Criminal Appeals aptly observed:
When a challenge is made as to whether a search warrant
affidavit is legally sufficient to show probable cause, the trial court
is limited to the “four corners” of the affidavit. See Gaston v. State,
440 S.W.2d 297, 302 (Tex. Crim. App. 1969). This is entirely
different from a challenge to the truthfulness of a warrant affidavit
and whether the affiant made knowing misrepresentations to
establish probable cause. When the defendant challenges the
warrant affidavit on the ground that it contains known falsehoods,
as is the case here, the trial court is not limited to the “four corners”
of the affidavit. See generally, George E. Dix & Robert O. Dawson,
Texas Practice: Criminal Practice and Procedure §§ 6.36–6.43 (2d ed.
2001). Limiting a falsity challenge to the four corners of the warrant
affidavit negates the underlying challenge and raises serious due
process concerns. See Franks v. Delaware, 438 U.S. 154, 156 (1978)
(stating that “if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request”) (emphasis added). Thus,
if a defendant has made a substantial preliminary showing of
deliberate falsity, the trial court is required to go behind the “four
corners” of the affidavit in a Franks evidentiary hearing.
Cates v. State, 120 S.W.3d 352, 355 n.3 (Tex. Crim. App. 2003) (parallel citations
omitted).
The majority itself relies heavily on an unexplained Manchester lab test
never mentioned in either warrant application. That document refers to an
“ethanol level” of “42.” The district court gave that no weight. The court of appeals
also gave “no weight” to that report “because the record is devoid of any
27
explanation of the medical or scientific significance of that information.” Without
citing any case authority, the majority takes judicial notice to convert that
number to a .042 blood alcohol content for Harbach. That is error. In State v.
Washington, we addressed the limited nature of appellate judicial notice:
[No] appellate court should ever take judicial notice of any facts that
might control constitutional adjudication without informing all
counsel and sending the case back to the trial court to give counsel
an opportunity to show the erroneous or irrelevant nature of the
facts judicially noticed.
832 N.W.2d 650, 656 (Iowa 2013) (alteration in original) (quoting City of Council
Bluffs v. Cain, 342 N.W.2d 810, 813–14 (Iowa 1983)). The State, as the proponent
of the Manchester lab report, failed to lay any foundation for its admissibility.
See State v. Wolfe, 369 N.W.2d 458, 459 (Iowa Ct. App. 1985) (holding that breath
test results should not have been admitted into evidence because the accuracy
and reliability of the testing method was not proved by the State as the proponent
of the evidence). Like the district court, I instead rely on the unchallenged Iowa
Division of Criminal Investigation lab report showing Harbach had zero alcohol
in his bloodstream.
The majority tries to minimize the material omissions from the application,
most notably that when Deputy Knipper first spoke with Harbach, he was
strapped to a backboard, wearing a neck brace, and receiving medical attention.
Then, when the deputy spoke with Harbach a second time, Harbach was inside
the ambulance, still on the backboard and in a neck brace, receiving further
medical treatment. These intentional omissions are “critical.” 2 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.4(b), at 677
(6th ed. 2020). “Any reasonable person would have known that this was the kind
of thing the judge would wish to know.” United States v. Jacobs, 986 F.2d 1231,
1235 (8th Cir. 1993) (holding that the officer materially misled the magistrate
28
when the officer stated in his affidavit that the police dog showed an interest in
a box but omitted the fact that the police dog did not alert to the box).
The majority also downplays demonstrably false statements, such as
Harbach’s refusal to take the PBT or HGN tests. The majority questions error
preservation because Harbach’s motion to suppress did not explicitly mention
them. Yet Harbach successfully challenged the veracity of the warrant
application in the district court and won the ruling granting his motion to
suppress. As appellee, he was not even required to file an appellate brief. Iowa
R. App. P. 6.903(3) (allowing appellee to waive filing a brief). The State does not
argue Harbach failed to preserve error. No rule of error preservation precludes
our consideration of any part of the record supporting Harbach as appellee.
Harbach claimed, and the district court agreed, that he was entitled to
suppression based on false statements or omissions made intentionally or
recklessly. On our de novo review, we can consider any statement in the warrant
application, even if Harbach did not specifically cite it below. See Feld v.
Borkowski, 790 N.W.2d 72, 83 (Iowa 2010) (Appel, J., concurring in part and
dissenting in part) (explaining that “once a claim is properly presented, a party
is not limited to arguments presented below”).
Bodycam video is especially important in Franks hearings when the
officer’s credibility is at issue. The majority downplays the video; I embrace it, as
did the district court. The bodycam video exposed false statements by Deputy
Knipper, including that Harbach refused the PBT and HGN tests that in fact he
never offered him and that Harbach refused to answer “any” questions. And the
video exposed his material omissions about Harbach being strapped to a
stretcher and neck brace. Without that video, our search for the truth is
hindered. Our court has relied on our own review of bodycam video in other
decisions. See, e.g., State v. Park, 985 N.W.2d 154, 170, (Iowa 2023) (relying on
29
our court’s “independent review of the bodycam video” to evaluate Miranda
claims). In many cases, dashcam and bodycam video corroborates the officer’s
testimony at a suppression hearing. See State v. Abu Youm, 988 N.W.2d 713,
717 (Iowa 2023) (concluding officers testified consistent with their bodycam video
supporting emergency aid exception to warrant requirement). But see id. at 729
(McDermott, J., dissenting) (concluding bodycam video showed lack of urgency).
At times, the officer will be impeached by the officer’s own bodycam, as happened
here. See State v. Chauvin, 989 N.W.2d 1, 19–20 (Minn. Ct. App. 2023) (finding
video refuted Officer Chauvin’s claim that his knee was not on George Floyd’s
neck).
Nothing in Deputy Knipper’s bodycam video corroborates his claims that
he was close enough to smell an alcoholic beverage on Harbach’s person, that
Harbach’s speech was slurred, or that his eyes were bloodshot or watery. After
the video affirmatively showed the deputy lied about Harbach refusing the PBT
or HGN tests and about Harbach refusing to answer any questions, why believe
the rest of his claims? Do you eat more stew after finding a rancid piece of meat?
I fear today’s opinion will undermine Franks. The warrant application was
replete with false statements. I would affirm the suppression ruling to support
the purpose of Franks: incentivizing truthful warrant applications and deterring
false statements in them. See Franks, 438 U.S. at 168 (“[T]hat a warrant not
issue ‘but upon probable cause, supported by Oath or affirmation,’ would be
reduced to a nullity if a police officer was able to use deliberately falsified
allegations to demonstrate probable cause, and, having misled the magistrate,
then was able to remain confident that the ploy was worthwhile.”); State v. Groff,
323 N.W.2d 204, 208 (Iowa 1982) (adopting Franks for Iowa constitutional claims
to better serve its purpose: “to deter constitutionally violative police conduct”).
For these reasons, I am unable to join the majority opinion.
30
Mansfield and McDermott, JJ., join this dissent.