State of Iowa v. Christine Ann Kern

IN THE SUPREME COURT OF IOWA
No. 11–1208
Filed May 24, 2013
STATE OF IOWA,
Appellee,
vs.
CHRISTINE ANN KERN,
Appellant.
Appeal from the Iowa District Court for Polk County, Artis I. Reis,
Douglas F. Staskal, and Robert B. Hanson, Judges.
The defendant appeals her conviction on narcotics charges by
challenging the search of her home and the sufficiency of the evidence.
REVERSED AND REMANDED.
Christopher R. Kemp of Kemp Sease & Dyer, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett Sr. and
Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County
Attorney, and Joseph D. Crisp and Andrea M. Petrovich, Assistant
County Attorneys, for appellee.
2
CADY, Chief Justice.
In this appeal, we primarily consider the constitutionality of a
search of the home of a parolee that uncovered evidence used to
prosecute and convict the parolee of numerous drug offenses. In doing
so, we must determine if the search was justified by the doctrines of
consent, special needs, exigent circumstances, community caretaking, or
a general balancing of the governmental interests served by the search
against the privacy interest of the parolee. We also consider the
sufficiency of the evidence to support the charges. On our review, we
find the search of the home and the seizure of the evidence violated
article I, section 8 of the Iowa Constitution. We reverse the judgment
and sentence of the district court and remand the case for further
proceedings.
I. Background Facts and Proceedings.
Christine Kern was a parolee living in Des Moines. She was
granted parole on February 17, 2010, following a period of incarceration
for a conviction of operating a motor vehicle while intoxicated, third
offense. As a condition of parole, Kern signed a parole agreement. The
agreement contained numerous standard conditions of parole, including
paragraph P, which provided: “I will submit my person, property, place of
residence, vehicle, personal effects to search at any time, with or without
a search warrant, warrant of arrest or reasonable cause by any parole
officer or law enforcement officer.” Paragraph P is a standard condition
of parole in Iowa.
On November 3, 2010, Staci Huisman, a child assessment worker
with the Iowa Department of Human Services (DHS), received an
anonymous complaint that marijuana was being grown and processed in
the house where Kern resided. The complaint also claimed marijuana
3
was used and sold in the house, and these circumstances endangered
Kern’s sixteen-year-old daughter and her infant grandchild who
occasionally stayed in the house. At the time, Kern lived in the home
with her boyfriend, Sean Grant.
On November 5, 2010, Huisman investigated the complaint by
making a home visit with the assistance of two police officers. The police
routinely assist the DHS in their investigation of drug complaints in
order to protect the safety of the investigator. The police presence also
offers an opportunity for them to request consent to search the premise
for illegal substances.
Huisman met narcotics police officers, Mark Chance and Matthew
Jenkins, near Kern’s residence, and they proceeded to the residence.
Kern responded to a knock on the door, and she allowed Huisman and
the officers to enter the home. Grant was also present. The officers felt
Grant purposely stood between them and the interior of the home to
prevent them from entering further into the home. Huisman explained
the nature of the complaint and asked for consent to search the
residence. Kern and Grant denied the allegations and denied consent to
search the residence. Detective Jenkins believed the conduct of Kern
and Grant was “defensive.”
Huisman explained she would need to remove the children from
the residence if she was unable to search the home. Kern still refused to
give consent. Huisman spoke with Kern’s daughter and explained the
situation and the allegations against Kern and Grant.1
1About a week later, in a follow-up meeting, Kern’s daughter acknowledged that
Grant used marijuana and sold it to other people. However, she denied knowledge of
the grow operation.
4
Huisman then removed the children and left the residence with the
officers. After traveling a short distance, Huisman advised the officers
that Kern was a parolee. Jenkins called Sergeant Brandon Garvey of the
probation and parole office and asked him to assist in searching the
house pursuant to the standard consent provision of parole agreements.
Garvey told Jenkins he was unable to immediately assist the law
enforcement officers, but verified Kern was on parole and that she had
signed a parole agreement containing the consent-search clause in
paragraph P. Garvey also gave Jenkins permission to conduct the search
on his behalf.
Chance and Jenkins returned to Kern’s residence. Kern appeared
to be walking to her car as the officers arrived, but she returned to the
house when she saw the officers. The officers informed Kern and Grant
they intended to search the house because Kern was a parolee and had
consented to a search in her parole agreement.
Jenkins remained with Kern and Grant while Chance began the
search. Garvey, the parole officer, arrived shortly after the search
started. In the basement, Chance found three separate marijuana
growing operations consisting of numerous marijuana plants. He then
accompanied Grant to a bedroom he shared with Kern. The bedroom
contained guns, as well as marijuana. The marijuana was located in a
jar on a dresser and a jar on a bed stand. Marijuana was also found in
large quantities in the dining room. The dining room appeared to serve
as a place to dry marijuana. Plants were strewn about the room, and
two large glass jars of dried marijuana were in the room. More glass jars
of marijuana were located in a dresser in the living room. Kern and
Grant were arrested. Grant immediately took full responsibility for the
marijuana operation and said Kern had nothing to do with it.
5
The State charged Kern with four crimes: (1) conspiracy to
manufacture a controlled substance in violation of Iowa Code section
124.401(1)(d) (2009), (2) manufacturing a controlled substance in
violation of Iowa Code section 124.401(1)(d), (3) possession of a
controlled substance with intent to deliver in violation of Iowa Code
section 124.401(1)(d), and (4) failure to possess a tax stamp in violation
of Iowa Code sections 453B.3 and 453B.12.
Prior to trial, Kern joined Grant’s motion to suppress the
marijuana as evidence at trial. She argued it was obtained in violation of
her constitutional rights under the Fourth Amendment to the United
States Constitution and article I, section 8 of the Iowa Constitution.
In a hearing on the motion, Chance and Jenkins testified that
Kern’s refusal to grant permission to search her house suggested to them
that drugs were located in the house. The State argued Kern waived her
rights to object to the search by signing a parole agreement containing
paragraph P. The State also asserted the search was justified by several
recognized exceptions to the warrant clauses of the Fourth Amendment
and article I, section 8. The exceptions included exigent circumstances,
the community caretaking function of police officers, and the special
needs presented by the maintenance of a parole system. Finally, the
State argued the search was reasonable under the totality of the
circumstances.
The district court found Kern gave “advance consent to search her
property without a warrant or without reasonable cause” by signing the
parole agreement. Additionally, it upheld the search as reasonable based
on the DHS complaint combined with the police officer’s suspicion
derived from the conduct of Kern and Grant during the initial encounter.
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The court also found the search was justified under exigent
circumstances and the community caretaking function.
In a subsequent trial on the minutes of testimony, the district
court found Kern guilty of all four counts. It imposed judgment and
sentence, and Kern appealed.
II. Issues Presented.
Kern raised two issues on appeal. First, she asserted there was
insufficient evidence to support a finding of guilt beyond a reasonable
doubt on each of the crimes charged. Second, Kern asserted the search
of her home was in violation of her constitutional search and seizure
rights under the Fourth Amendment of the United States Constitution
and article I, section 8 of the Iowa Constitution. To resolve this second
claim, we must unravel several threads of constitutional search and
seizure law, including waiver or consent, special needs, exigent
circumstances, community caretaking, and what has been termed the
“general balancing approach.”
III. Sufficiency of the Evidence.
A. Scope and Standard of Review. We first address whether the
State introduced sufficient evidence for a fact finder to find Kern guilty
beyond a reasonable doubt. We address this issue first because the
Double Jeopardy Clause would not permit a retrial of the charges if there
was insufficient evidence of guilt presented at trial. State v. Dullard, 668
N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39,
109 S. Ct. 285, 290, 102 L. Ed. 2d 265, 272–73 (1988)).
We review challenges to the sufficiency of the evidence presented at
trial for correction of errors of law. State v. Randle, 555 N.W.2d 666, 671
(Iowa 1996). The essential question before the court on a challenge to
sufficiency of the evidence is whether there was substantial evidence to
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support a guilty verdict beyond a reasonable doubt. State v. Torres, 495
N.W.2d 678, 681 (Iowa 1993).
We view the evidence presented at trial in the light most favorable
to the State but consider all the evidence in the record, not just the
evidence favoring the State. Id. Moreover, “[t]he evidence must raise a
fair inference of guilt and do more than create speculation, suspicion, or
conjecture.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).
B. Discussion. Iowa Code section 124.401(1) makes it
unlawful for any person to manufacture, deliver, or possess
with the intent to manufacture or deliver, a controlled
substance, a counterfeit substance, or a simulated
controlled substance, or to act with, enter into a common
scheme or design with, or conspire with one or more other
persons to manufacture, deliver, or possess with the intent
to manufacture or deliver a controlled substance, a
counterfeit substance, or a simulated controlled substance.
While section 124.401(1) prohibits a variety of conduct, it essentially
defines one prohibition that can be violated in a number of ways. See
State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993) (discussing Iowa Code
section 204.401(1), the predecessor of Iowa’s current controlled
substance statute). We address each violation under the statute.
1. Conspiracy to manufacture a controlled substance in violation of
Iowa Code section 124.401(1)(d). Kern asserts the district court
erroneously found her guilty of conspiracy to manufacture a controlled
substance in violation of Iowa Code section 124.401(1)(d). See State v.
Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (discussing the relationship
between Iowa’s controlled substance statute, Iowa Code section 124.401,
and Iowa’s conspiracy statute, Iowa Code section 706.1).
To convict Kern of conspiracy to manufacture a controlled
substance, the State was required to show:
8
(1) the defendant agreed with one or more persons that one
or both of them would manufacture or attempt to
manufacture [marijuana], (2) the defendant entered into
such an agreement with the intent to promote or facilitate
the manufacture of [marijuana], (3) one of the parties to the
agreement committed an overt act to accomplish the
manufacturing of [marijuana], and (4) the alleged
coconspirator(s) was not a law enforcement agent or
assisting law enforcement when the conspiracy began.
See State v. Fintel, 689 N.W.2d 95, 102 (Iowa 2004) (alterations added);
see also Iowa Code § 706.1 (defining the crime of conspiracy).
Here, the evidence supported a finding that Grant engaged in an
overt act of growing marijuana in the home. Moreover, Grant was not a
law enforcement agent or assisting law enforcement. Thus, the fighting
issue is whether Kern formed an agreement that Grant would
manufacture marijuana and whether she formed such an agreement with
the intent to promote or facilitate the manufacture of marijuana. The
State was not required to show Kern manufactured marijuana, but that
she agreed Grant would manufacture marijuana. See State v. Casady,
597 N.W.2d 801, 807 (Iowa 1999); see also State v. Corsi, 686 N.W.2d
215, 220 (Iowa 2004); State v. Carlson, 203 Iowa 90, 93, 212 N.W. 312,
313 (1927).
A conspiracy is essentially a criminal contract characterized “as a
‘concert of free wills,’ ‘union of the minds of at least two persons,’ and ‘a
mental confederation involving at least two persons.’ ” Speicher, 625
N.W.2d at 741–42 (quoting State v. Boyer, 342 N.W.2d 497, 499 (Iowa
1984)). Conspiracies are, by nature, clandestine affairs. Corsi, 686
N.W.2d at 219. Thus, direct evidence of an agreement to form a
conspiracy is often absent, and in response, we have consistently allowed
circumstantial evidence and inferences drawn from the circumstances to
support a conviction on a conspiracy charge. Id.; accord State v. Blyth,
9
226 N.W.2d 250, 263 (Iowa 1975); Carlson, 203 Iowa at 93, 212 N.W. at
313. We have also said:
“An agreement that, because of its purpose or the means
contemplated, amounts to a conspiracy need not be formal
or express, but may be a tacit understanding; the agreement
may be inherent in and inferred from the circumstances,
especially declarations, acts, and conduct of the alleged
conspirators.”
State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (quoting 16 Am. Jur. 2d
Conspiracy § 10, at 204–05 (1998)).
Circumstantial evidence of an agreement must be based on more
than suspicion. State v. Keyser, 257 Iowa 73, 79, 130 N.W.2d 701, 704
(1964). Similarly, “circumstantial evidence that proves mere presence at
the scene of the crime or association with those involved in the crime is
not sufficient to show an agreement.” Corsi, 686 N.W.2d at 219. Mere
presence or general association creates no more than “conjecture and
speculation” of criminal complicity. Speicher, 625 N.W.2d at 743.
However, the central location of the manufacturing process can be
relevant to the element of an agreement. See Corsi, 686 N.W.2d at 220
(observing that defendant’s commission of drug manufacturing in a
codefendant’s apartment supports an inference that the defendant had
the apartment tenant’s permission to conduct the illegal activity, which
supports an inference that a conspiracy between them had been formed).
In Corsi, we implicitly acknowledged the existence of an important
inversion of our holding in Speicher that mere presence at the location of
a crime or mere association with criminals was insufficient for a finding
that the defendant formed an agreement. While the mere presence of a
person on someone else’s property where someone else is or has been
manufacturing a controlled substance supports only conjecture of
10
participation in the conspiracy, permission given by a property owner for
others to maintain an obvious manufacturing operation throughout the
premises would be strongly suggestive of a tacit agreement, at the very
least. See id. at 220.
Indeed, our decision in Fintel, which arose out of the same facts as
Corsi, is instructive here. In Corsi, the defendant was prosecuted for
manufacturing a controlled substance in Fintel’s apartment. See id. at
219–20. Thus, we contemplated in Fintel that a conspiracy could be
inferred in part because the defendant “knew methamphetamine was
being manufactured in his apartment” and the “defendant’s apartment
was littered with the necessary ingredients and utensils for
manufacturing methamphetamine.” Fintel, 689 N.W.2d at 102 (emphasis
added). While more inculpatory evidence was presented in Fintel than in
this case—and we did not pass on whether Fintel’s possession of the
apartment in which he knowingly allowed manufacturing of narcotic
substances was alone sufficient to find his participation in the
conspiracy—it was evident an agreement to manufacture controlled
substances inhered in the circumstances. See id. One person knowingly
permitted another to produce copious quantities of those substances on
premises the person occupied and controlled. Id. A fact finder was
permitted to draw these inferences.
Here, a rational fact finder could have inferred a tacit agreement
between Kern and Grant. Even assuming Kern took no part in the actual
manufacture of marijuana, there was evidence to show Grant maintained
an extensive growing, drying, and selling operation throughout the home.
Marijuana plants were found in the basement. A marijuana drying room
existed on the main floor. Marijuana was found in jars in the bedroom
Kern and Grant shared. Kern’s daughter told the DHS officer a week
11
after the search that she was well aware of Grant’s narcotic use and
sales. She similarly informed the DHS officer that Kern was also aware
the marijuana was sold.
Accordingly, we conclude the extensive presence of a marijuana
growing operation throughout the home and the obvious knowledge of
the operation constituted substantial evidence upon which a rational fact
finder could infer an agreement between the two occupants of the home
wherein one occupant would promote or facilitate the other in the
manufacture of a controlled substance by allowing the operation to take
place in the residence. The operation was so extensive that Kern literally
lived with the manufacturing process. Additionally, Grant needed cover
to operate the illegal enterprise, and Kern provided that cover by
permitting the residence to be used to manufacture marijuana. Our law
only requires the existence of a tacit understanding to support a
conspiracy, and this evidence was sufficient to infer such an
understanding. We stress that mere knowledge by an owner or renter of
a premise that a controlled substance is manufactured on their premises
does not make an agreement. Rather, we simply hold that a fact finder
relying on the evidence in this case could rationally find beyond a
reasonable doubt that Kern intended to promote or facilitate the
manufacturing of marijuana.
2. Possession of a controlled substance with intent to deliver in
violation of Iowa Code section 124.401(1)(d). Kern was found guilty of
possession of a controlled substance with intent to deliver. She argues
insufficient evidence was presented to support a finding by the district
court that she possessed the marijuana. We agree.
Under the statute, the State must prove the accused “ ‘exercised
dominion and control over the contraband, had knowledge of the
12
contraband’s presence, and had knowledge the material was a narcotic.’ ”
State v. Dewitt, 811 N.W.2d 460, 474 (Iowa 2012) (quoting State v.
Maxwell, 743 N.W.2d 185, 193 (Iowa 2008)). “The location in which the
substance is found guides our determination of possession.” Id.
Because no marijuana was found on Kern’s person, she was not in
actual possession of the marijuana. See id. Accordingly, we must
consider whether there was sufficient evidence of constructive
possession. See id.
To prove constructive possession, the State must show “the
defendant had knowledge of the controlled substance as well as the
authority or right to control it.” Id. Our seminal constructive possession
case is State v. Reeves, 209 N.W.2d 18 (Iowa 1973). In Reeves, we said:
If the premises on which such substances are found
are in the exclusive possession of the accused, knowledge of
their presence on such premises coupled with his ability to
maintain control over such substances may be inferred.
Although no further proof of knowledge by the State is
required in cases of exclusive possession by the accused the
inference of knowledge is rebuttable and not conclusive. But
where the accused has not been in exclusive possession of
the premises but only in joint possession, knowledge of the
presence of the substances on the premises and the ability
to maintain control over them by the accused will not be
inferred but must be established by proof.
Id. at 23.
Thus, constructive possession involves inferences. Yet, our law
does not permit an inference to be drawn based only on the presence of
drugs found in a jointly occupied premise, as opposed to the exclusive
occupancy of a premises. See id. More proof is needed to draw the
constructive possession inference. In addition to proof of immediate and
exclusive possession of the place where drugs are found on a premises,
we identified the nature of this additional proof as
13
(1) incriminating statements made by a person;
(2) incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s fingerprints on
the packages containing the controlled substance; and
(4) any other circumstances linking the person to the
controlled substance.
Maxwell, 743 N.W.2d at 194.
In this case, only the fourth factor is implicated. We must decide if
the presence of a vast marijuana growing operation in plain view
throughout the home was enough additional proof to draw an inference
of constructive possession of the marijuana found in a jointly occupied
house.
We return to the basic meaning of dominion and control to answer
this question. In the absence of actual possession, constructive
possession requires the person to maintain control over the drugs or
have the right to control the drugs. See Reeves, 209 N.W.2d at 23. This
standard focuses on the “ability to maintain control.” Id. When the facts
only show joint dominion and control over a premises, however, it is
unfair to impute control over the drugs without more proof, such as
immediate and exclusive access to the place where the drugs were found
in the jointly occupied premises.
The broad rationale behind this approach involves a balance
between two competing considerations. State v. Simpson, 528 N.W.2d
627, 636 (1995) (Ternus, J., dissenting). Convictions for possession of
drugs should be possible under the law, even though the defendant is
not caught “red-handed,” but innocent bystanders in the wrong place at
the wrong time must be protected from a conviction. Id. Our guideposts
governing joint occupancy strike this balance. Id. Here, the question is
whether the vast nature of the drug operation within the house was
14
enough additional proof to provide an inference that Kern maintained
dominion and control over the marijuana.
In this case, there was no evidence that Kern was more than an
agreeable bystander to a vast operation she permitted to take place. An
inference that Kern conspired with Grant for him to use the house to
grow and process marijuana cannot be extended to also support an
inference that Kern exercised dominion and control over the marijuana,
without some evidence pointing to dominion and control. Conspiracy
and possession are independent concepts. Without more evidence than
the presence of the marijuana operation, an inference of dominion and
control would only be based on the presence of the marijuana in the
house. Our long-standing rule does not permit an inference of dominion
and control based only on the presence of drugs in a jointly occupied
premises. Reeves, 209 N.W.2d at 23. Thus, there was insufficient
evidence presented at trial that Kern possessed marijuana.
3. Manufacturing a controlled substance in violation of Iowa Code
section 124.401(1)(d). The district court also found Kern guilty of
manufacturing a controlled substance. She argues there was insufficient
evidence to support this count. We agree.
The district court relied on Kern’s knowledge of the manufacturing
operation in her home to infer she manufactured the marijuana.
However, the Iowa Code contemplates manufacturing as an active
concept, requiring more than the mere passive knowledge of the
defendant. It requires proof of an affirmative act of manufacturing,
which the State failed to produce.
“Manufacture” is defined in chapter 124 of the Iowa Code as
the production, preparation, propagation, compounding,
conversion, or processing of a controlled substance, either
15
directly or by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a
combination of extraction and chemical synthesis, and
includes any packaging or repackaging of the substance or
labeling or relabeling of its container . . . .
Iowa Code § 124.101(18). This language suggests manufacturing
involves affirmative acts or an activity. This concept is reinforced by
considering that the separate criminal offense of manufacturing
methamphetamine in the presence of a minor specifically refers to
manufacturing as an “activity.” Id. § 124.401C(2). “Activity” in this
context means “an occupation, pursuit, or recreation in which a person
is active.” Webster’s Third New International Dictionary 22 (unabr. ed.
2002).
Two cases augment this view. In Casady, we observed that
manufacturing a controlled substance and conspiring to manufacture a
controlled substance represent two alternative ways to violate section
124.401(1). 597 N.W.2d at 807. We said,
[t]he first alternative means of violating the statute is the
actual manufacture of drugs, but the second alternative
includes a conspiracy to manufacture it. Contrary to
Casady’s argument, it is not necessary for the State to prove
the second alternative by also proving the first. While the
State must show an overt act toward the accomplishment of
the conspiracy, it did not have to prove the completed act.
Id. (citations omitted). In State v. Royer, we held that a defendant could
not be convicted of manufacturing a controlled substance without
actually producing the threshold amount of a controlled substance. 632
N.W.2d 905, 909 (Iowa 2001). Implicit in this conclusion was the
assumption that manufacturing requires evidence the defendant was
actually engaged in one of the productive activities listed in section
124.101(18). See id.
16
We acknowledge our court of appeals has held that a conviction for
manufacturing a controlled substance can be based on evidence that the
defendant “was able to claim immediate dominion over the process, or
maintained or shared exclusive dominion over the process.” State v.
Spivie, 581 N.W.2d 205, 208 (Iowa Ct. App. 1998). However, Spivie was
predicated on Rudd, and its progeny, which permitted an inference of
dominion and control based on shared, exclusive dominion. See State v.
Rudd, 454 N.W.2d 570, 571 (Iowa 1990). In Webb, we overruled our
holding in Rudd to the extent that its pronouncements concerning
constructive possession were contrary to our constructive-possession
principles set out in Reeves. Webb, 648 N.W.2d at 79. Thus, Spivie is
no longer good law to the extent that its holding would apply to jointly
occupied premises. Instead, Webb instructs that joint possession of a
premises where the manufacturing of a controlled substance occurs
would not alone support an inference that a joint occupant participated
in the manufacturing of the controlled substance. Id.
Accordingly, there was insufficient evidence to support Kern’s
conviction for manufacturing a controlled substance in violation of
section 124.401(1). The State failed to produce evidence to show Kern
engaged in an affirmative act of manufacturing.
4. Failure to possess a tax stamp in violation of Iowa Code sections
453B.3 and 453B.12. The crime of failure to affix a drug tax stamp
requires a drug dealer to possess, distribute, or offer to sell a taxable
substance. Iowa Code § 453B.3. The State prosecuted Kern for this
crime based on its claim that she possessed the marijuana found in the
house. Having found insufficient evidence of possession, we also find
insufficient evidence to support a conviction for failing to affix a drug tax
stamp.
17
5. Disposition. The conviction for conspiracy was supported by
sufficient evidence at trial, while the remaining convictions were not
supported by substantial evidence. These three convictions must be
dismissed. Thus, we proceed to consider the claim asserted by Kern that
the marijuana and other evidence was illegally seized and should have
been suppressed at trial. Because we ultimately agree with Kern that the
search of her home violated article I, section 8 of the Iowa Constitution,
trial on remand must be limited to the charge of conspiracy.
IV. Constitutionality of the Search of Kern’s Home.
A. Scope and Standard of Review. Kern argues the search of
her home violated the guarantees of the Fourth Amendment of the United
States Constitution2 and article I, section 8 of the Iowa Constitution.3
The State argues the search can be justified because Kern prospectively
consented to warrantless, suspicionless searches by parole or other law
enforcement officers when she signed a parole agreement containing a
provision that purportedly granted consent to conduct such searches. In
the alternative, the State argues that a special need exists justifying
departure from the warrant and probable cause requirements of the
Fourth Amendment and article I, section 8. The State also argues that
2The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
3Article 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.
18
exigent circumstances and the community caretaking function of police
officers justified the search. Finally, the State argues that the search
should be held reasonable under the totality of the circumstances using
a generalized balancing test.
“We review claims the district court failed to suppress evidence
obtained in violation of the federal and state constitutions de novo.”
Dewitt, 811 N.W.2d at 467. When presented with such a claim, “ ‘we
make an independent evaluation [based on] the totality of the
circumstances as shown by the entire record.’ ” State v. Kurth, 813
N.W.2d 270, 272 (Iowa 2012) (quoting State v. Krogmann, 804 N.W.2d
518, 522 (Iowa 2011)). “ ‘Each case must be evaluated in light of its
unique circumstances.’ ” Id. at 272 (quoting Krogmann, 804 N.W.2d at
523).
Kern brings her claim under both the Fourth Amendment of the
United States Constitution and article I, section 8 of the Iowa
Constitution. When presented with a claim arising out of both the
Fourth Amendment and article I, section 8, we consider the state claim
independent from the federal claim. State v. Pals, 805 N.W.2d 767, 771
(Iowa 2011). This can be done in either order or even simultaneously.
Id. at 772. In this case, we answer the question under our state
constitution.
B. Merits. “We employ a two-step approach to determine whether
there has been a violation of . . . article I, section 8 of the Iowa
Constitution.” State v. Lowe, 812 N.W.2d 554, 567 (Iowa 2012). First,
the defendant must show he or she has “a legitimate expectation of
privacy in the area searched.” Id. Second, if so, we must determine
whether the defendant’s rights were violated. Id.
19
As we have recounted in other cases, the Fourth Amendment and
article I, section 8 create a substantial expectation of privacy in the
home. State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009). Given that
warrantless invasion of the home was the “chief evil” the Fourth
Amendment and article I, section 8 each sought to address, see State v.
Reinier, 628 N.W.2d 460, 464 (Iowa 2001) (citing United States v. United
States Dist. Ct., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d
752, 764 (1972)); see also State v. Ochoa, 792 N.W.2d 260, 267, 277,
284–85 (Iowa 2010), it stands to reason that Iowans hold a significant
and legitimate expectation of privacy in their homes. This fact of Iowa
constitutional law is underscored by our piquantly stated and stirring
explanation of the right a century ago in McClurg v. Brenton:
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
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.
123 Iowa 368, 371–72, 98 N.W. 881, 882 (1904).
Under the Supreme Court’s Fourth Amendment jurisprudence,
parolees have little or no reasonable expectation of privacy. See Samson
v. California, 547 U.S. 843, 852, 126 S. Ct. 2193, 2199, 165 L. Ed. 2d
250, 259 (2006) (“[W]e conclude that petitioner did not have an
20
expectation of privacy that society would recognize as legitimate.”); cf.
United States v. Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151
L. Ed. 2d 497, 506 (2001) (holding probationer had a diminished
expectation of privacy). As such, parolees effectively cannot challenge a
search of their home, person, vehicle, or effects. See Samson, 547 U.S.
at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259. Yet, we have held that
the Iowa Constitution projects a different view that vests parolees with
the expectation of privacy enjoyed by persons not convicted of crimes and
allows them to object to a search of their home or person. See State v.
Cullison, 173 N.W.2d 533, 537–38 (Iowa 1970); see also Ochoa, 792
N.W.2d at 291. Accordingly, Kern may seek suppression of the evidence
obtained during the search of her home.
Thus, we proceed to consider the constitutionality of the search of
her home. See Lowe, 812 N.W.2d at 567–68. This is a broad question,
and it implicates several doctrines of constitutional search and seizure
law. We address them in turn.
1. Consent. The State argues Kern prospectively consented to
warrantless searches by signing a parole agreement containing a
consent-to-search provision. Essentially, the State argues Kern and the
State entered into a contract that establishes consent under Schneckloth
v. Bustamonte, 412 U.S. 218, 227–28, 93 S. Ct. 2041, 2047–48, 36
L. Ed. 2d 854, 863 (1973), and Zap v. United States, 328 U.S. 624, 628–
29, 66 S. Ct. 1277, 1279, 90 L. Ed. 1477, 1482 (1946), judgment vacated
by 330 U.S. 800, 67 S. Ct. 857, 91 L. Ed. 2d 1259 (1947).
In State v. Baldon, 829 N.W.2d 785, 802–03 (Iowa 2013), we
rejected this argument and held that a consent-to-search provision in a
parole agreement did not establish consent to search. Accordingly, we
21
conclude paragraph P of Kern’s parole agreement did not justify the
search of Kern’s home.
2. Special needs. The State asserts the search of Kern’s home was
justified because Iowa’s maintenance of a parole system presents
“exceptional circumstances in which special needs, beyond the normal
need for law enforcement, make the warrant and probable-cause
requirement impracticable.” New Jersey v. T.L.O., 469 U.S. 325, 351,
105 S. Ct. 733, 748, 83 L. Ed. 2d 720, 741 (1985) (Blackmun, J.,
concurring); cf. Griffin v. Wisconsin, 483 U.S. 868, 875–76, 107 S. Ct.
3164, 3169, 97 L. Ed. 2d 709, 718–19 (1987) (holding that Wisconsin’s
maintenance of a probation system constitutes a special need, justifying
departure from the ordinary warrant and probable cause requirements of
the Fourth Amendment). Kern replies that under Cullison and Ochoa the
search violated article I, section 8 of the Iowa Constitution. See Ochoa,
792 N.W.2d at 290–91; Cullison, 173 N.W.2d at 536–37. We therefore
turn to consider whether the maintenance of a parole system in Iowa
constitutes such a special need justifying a departure from Cullison.
a. Fundamental concepts of special-needs searches as developed
by the United States Supreme Court under the Fourth Amendment.
Although we have never recognized the special-needs doctrine under
article I, section 8 in the context of parolees, the United States Supreme
Court has articulated a core consideration for analyzing special-needs
searches under the Fourth Amendment.4 See Camara v. Mun. Ct., 387
4We applied the special-needs doctrine in the school-search context in State v.
Jones, 666 N.W.2d 142, 145–50 (Iowa 2003). In that case, a student contested the
search of his locker under both the Fourth Amendment and article I, section 8. Id. at
144. Before proceeding to analyze the facts of the case, we said, “We usually interpret
‘ “the scope and purpose of article I, section 8, of the Iowa Constitution to track with
federal interpretations of the Fourth Amendment.” ’ ” Id. at 145 (quoting State v.
Breuer, 577 N.W.2d 41, 44 (Iowa 1998)). Jones featured no independent analysis of the
22
U.S. 523, 533, 87 S. Ct. 1727, 1733, 18 L. Ed. 2d 930, 938 (1967). The
nub of Camara’s rationale is that the propriety of a departure from the
warrant and probable cause requirements for certain types of searches
depends on whether demanding compliance with those requirements is
“likely to frustrate the governmental purpose behind the search.” Id.
The question ultimately boils down to whether the policy interest served
by the search would be totally lost if the warrant and probable cause
requirements could not be modified. See id. Indeed, a court considering
whether to recognize a special need in a particular circumstance must
determine something exceptional exists in the situation, which at least
renders the warrant infeasible. See T.L.O., 469 U.S. at 356, 105 S. Ct. at
750, 83 L. Ed. 2d at 744 (Brennan, J., concurring in part and dissenting
in part). Therefore, for example, the Camara Court’s balancing revealed
that particularized suspicion was unnecessary in the municipal fire code
context because “the only effective way to seek universal compliance
with the minimum standards required by municipal codes is through
routine periodic inspections of all structures.” Camara, 387 U.S. at 535–
36, 87 S. Ct. at 1734, 18 L. Ed. 2d at 939 (emphasis added). In contrast,
warrants showing authority to enter a home remained indispensable
because the government interest could still be served within the confines
_____________________
Iowa Constitution and did not examine why any particular search would implicate
“ ‘special needs, beyond the normal need for law enforcement, mak[ing] the warrant and
probable-cause requirement impracticable.’ ” See id. at 145–47 & n.2 (quoting Bd. of
Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 829, 122 S. Ct. 2559, 2564, 153
L. Ed. 2d 735, 744 (2002)). In fact, our discussion of the special-needs doctrine was
limited to an examination of what the United States Supreme Court had said on the
subject. See id. at 145 & n.2. In any event, we certainly have not recognized the
special-needs doctrine in the parole-search context. See Ochoa, 792 N.W.2d at 291
(“We have no occasion to consider . . . the potential application of special needs to
searches of parolees conducted by parole officers . . . .”).
23
of the warrant process. Id. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at
938.
b. Iowa Supreme Court cases dealing with searches of parolees and
probationers under article I, section 8 of the Iowa Constitution. We first
considered searches of parolees in Cullison, in which a parole officer
named Holmes went to the home of a parolee named Teeters after he did
not show up for work. 173 N.W.2d at 534. After Teeters allowed Holmes
in the messy apartment strewn with beer cans, Holmes asked to inspect
a locked room, but Teeters refused. Id. at 534–35. Holmes obtained a
master key but was still unable to open the door. Id. at 535. When
Teeters became nervous and displayed a knife, Holmes left the apartment
and returned later with the police chief. Id. An ensuing warrantless
search of the locked room revealed stolen merchandise. Id.
Evaluating the case, we rejected theories of parole that diluted or
stripped a parolee’s constitutional search and seizure protections. Id. at
536–38. We observed these theories were based on an unpersuasive
“socio-juristic rationalization, i.e., protection of the public and
constructive custody.” Id. at 536. We noted that, under article II,
section 5 of the Iowa Constitution, a convicted person loses only the right
to vote or hold office. Id. at 537. Accordingly, we concluded a parolee
maintains search and seizure rights under the Iowa Constitution. Id.
Bolstering this view, we cited Camara to stress that the determination of
those situations that support a search must be made by a neutral
magistrate and must be represented by a warrant. Id. at 538.
Interestingly, the parole officer in Cullison was engaged in a type of
parole supervision, often contemplated to be within the context of the
special-needs doctrine today, at least at the outset of the case. See id. at
534; cf. Griffin, 483 U.S. at 875, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718.
24
Dissents from Justices Larson and Stuart argued that the operation of a
parole system and the need to carry out the duties of a parole officer
justified the search. See Cullison, 173 N.W.2d at 542–44 (Larson, J.,
dissenting); id. at 544 (Stuart, J., dissenting). Accordingly, these
dissents seem to be grounded on a special need for parole officers to
conduct warrantless searches. Justice Larson argued the parole system
renders parole searches different from police searches: it gives parole
officers the authority to supervise the parolee, and the parole officer’s
special status makes searches of parolees reasonable that would be
unreasonable if conducted in relation to a person not on parole. Id. at
542–44 (Larson, J., dissenting). Because Holmes had a reasonable belief
Teeters was violating parole, the dissent concluded the search was
acceptable. Id. at 544. Justice Stuart’s dissent argued that searches of
parolees present an exception to the warrant requirement. Id. (Stuart,
J., dissenting).
Impliedly answering the dissent, our majority in Cullison stated
something germane to the resolution of this case: “[T]he fact that a
criminal accused is also a parolee should not, as to a new and separate
crime, destroy or diminish constitutional safeguards afforded all people.
If convicted, the sentence will be in addition to that previously imposed.”
Id. at 538. As we strive to remain faithful to more than forty years of
Iowa precedent, we acknowledge that we rejected the notion that parole
supervision could justify a later, full-scale search for evidence of a new
crime.
We recently renewed our consideration of searches of parolees in
Ochoa, where a police officer searched a parolee and his motel room
solely on the basis of Ochoa’s parolee status. 792 N.W.2d at 262–63. We
held the search of Ochoa and his motel room was unreasonable,
25
specifying that parolee status cannot alone provide the basis for a full-
scale search. Id. at 291. In doing so, we rejected at least one recent case
from the United States Supreme Court, Samson, which effectively
rendered nugatory any constitutional search and seizure protections
enjoyed by probationers and parolees. Ochoa, 792 N.W.2d at 291; see
also Samson, 547 U.S. at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259.
Yet, the case did not present an opportunity to specifically consider
whether Iowa’s parole system presented a special need to conduct a
search without a warrant or probable cause. Ochoa, 792 N.W.2d at 286.
But, later in the opinion, we stressed that any special-need exception
under article I, section 8 would be limited. Id. at 288–89.
The concurring opinion in Ochoa discussed special-needs searches
and suggested the limitation maintained in the majority opinion is
accomplished by the link between the asserted special need in the
parolee context and the rationale supporting special-needs searches
generally. Id. at 294–95 (Cady, J., concurring specially). While
legitimate reasons exist for maintaining intensive supervision of parolees,
it was observed that searches could only be legitimate when performed
by a parole officer in the context of the parole mission. Id. at 294.
Neither the reasons attached to the parole mission nor the identity of the
search agent are sufficient alone to justify the search; rather, it is the
“confluence” of these two facts that would create a valid special need. Id.
c. Academic commentary. Some academic commentary has been
favorable to applying the special-needs theory to parolees and
probationers. Indeed, while older theories such as the “act of grace” and
“waiver” theories of parole have been rejected as unsound, commentators
tend to agree with the states that hold parolees have a reduced
expectation of privacy, thereby making certain intrusions on parolee
26
privacy reasonable that would be unreasonable if directed at an ordinary
person. 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 10.10(c), at 533 (2012) [hereinafter LaFave]. Other
commentators disagree, however, and argue that, while compelling
governmental interests may justify some particular intrusions in a
special-needs context, generally undervaluing the parolee’s privacy
interests is inappropriate. Antoine McNamara, Note, The “Special Needs”
of Prison, Probation, and Parole, 82 N.Y.U. L. Rev. 209, 243–46 (2007)
[hereinafter McNamara]. These commentators argue that, like the
municipal safety inspections at issue in Camara, the “only effective way”
to ensure the rehabilitation of parolees and probationers is through a
supervision regime that is not fully commensurate with ordinary
constitutional search and seizure protections. Id. at 244; see also
Welsh S. White, The Fourth Amendment Rights of Parolees and
Probationers, 31 U. Pitt. L. Rev. 167, 183–84 (1969) [hereinafter White];
William J. Stuntz, Implicit Bargains, Government Power, and the Fourth
Amendment, 44 Stan. L. Rev. 553, 580–81 (1992); Note, Striking the
Balance Between Privacy and Supervision: The Fourth Amendment and
Parole and Probation Searches of Parolees and Probationers, 51 N.Y.U. L.
Rev. 800, 831–35 (1976) [hereinafter Note].
At least one commentator has pointed out that widespread use of
warrantless and suspicionless searches of parolees irresponsibly invades
not only the rights of parolees, but their families as well. See Note, 51
N.Y.U. L. Rev. at 816–17. As the commentator stated,
Fourth Amendment protection will be diminished not only
for parolees, but also for the family and friends with whom
the parolee might be living. Those bystanders may find
themselves subject to warrantless searches only because
they are good enough to shelter the parolee, and they may
therefore be less willing to help him—a sadly ironic result in
27
a system designed to encourage reintegration into society.
Moreover, the demeaning effect of arbitrary intrusions into
the parolee’s privacy will be reflected in the attitudes of his
relatives and friends. As a result, the parolee will suffer
diminished feelings of self-worth, making his rehabilitation
more difficult. In addition, warrantless parole officer
searches may reinforce patterns of resentment to authority,
and excessive external controls may inhibit the development
of necessary internal controls: “a person must have the
freedom to be responsible if he is to become responsibly
free.”
Id. (footnotes omitted) (quoting People v. Mason, 488 P.2d 630, 637 (Cal.
1971) (Peters, J., dissenting)). Moreover, as observed, these searches
may impede the parolee’s rehabilitative progress and development of a
trusting relationship with their parole officer, particularly because the
parolee is subjected to these searches in the presence of their family. Id.
Even worse, these searches may ultimately encourage the families of
parolees to turn out their reforming relatives at a time when the bonds of
family are precisely what a reforming citizen needs. Id.
Some commentators disagree, not with the application of the
special-needs doctrine to parolees and probationers, but with the scope
of searches considered acceptable under its rubric. See White, 31 U.
Pitt. L. Rev. at 186–99. Thus, while increased use of frisks, drug tests,
and house visits might be justifiable under a special-needs theory, full-
scale searches—whether conducted by parole officers or general law
enforcement officers—are not.5 Id. Stated differently: “If a parole or
5Justice Blackmun advanced a similar argument in his Griffin dissent. See
Griffin, 483 U.S. at 881, 107 S. Ct. at 3172, 97 L. Ed. 2d at 722 (Blackmun, J.,
dissenting). Justice Blackmun’s principled view of special-needs searches forms the
basis of his argument:
“[O]nly when the practical realities of a particular situation suggest that
a government official cannot obtain a warrant based upon probable
cause without sacrificing the ultimate goals to which a search would
contribute, does the Court turn to a ‘balancing’ test to formulate a
standard of reasonableness for this context.”
28
probation search does not further rehabilitation, then its sole purpose is
law enforcement, and it cannot qualify for the special needs exception.”
McNamara, 82 N.Y.U. L. Rev. at 244.
Professor White argued that parole officers will have somewhat
greater leeway to search a parolee’s home than an ordinary citizen’s
because some behavior of the parolee—such as drinking or changing
residence without first obtaining approval from the parole officer—is
prohibited by the parole agreement. White, 31 U. Pitt. L. Rev. at 196.
Nonetheless, even in these situations, White would require the parole
officer to obtain a warrant based on probable cause from a neutral
judicial officer. Id. at 195–97. White thus disagrees with the Griffin
Court, arguing that a neutral magistrate is in a better position to
accommodate the rights of parolees and the concerns of the public. Id.
at 196–97. The uncontrolled discretion of the parole officer is as much of
a subject of legitimate worry as the uncontrolled discretion of general law
enforcement officers. See id. LaFave has reflected favorably upon the
balance struck by White. See 5 LaFave at 536–38.
Finally, some commentary has attacked the very concept of
special-needs searches. For instance, it has been suggested that the
_____________________
See id. (quoting O’Connor v. Ortega, 480 U.S. 709, 741, 107 S. Ct. 1492, 1511, 94
L. Ed. 2d 714, 738 (1987) (Blackmun, J., dissenting)). In Justice Blackmun’s view,
while probation presents special needs, it did not do so uniformly. See id. at 883–84,
107 S. Ct. at 3173–74, 97 L. Ed. 2d at 723–24. An “ordinary home visit” to check in on
the progress of the probationer’s rehabilitation presents a special need justifying an
alternative to the warrant requirement, but a full-scale search for evidence in a criminal
investigation would not. See id. Furthermore, full-scale criminal searches may not
promote a close relationship between the probation officer and the probationer and may
in fact inhibit the development of the relationship. See id. at 886, 107 S. Ct. at 3175,
97 L. Ed. 2d at 725–26. Of course, the warrant requirement does not frustrate the valid
purposes of parole searches in all circumstances in which case the special-needs
doctrine should be unavailable altogether. See cf. at 883–84, 107 S. Ct. at 3173–74, 97
L. Ed. 2d at 723–24.
29
special-needs doctrine developed by the United States Supreme Court in
Camara and Terry v. Ohio, 392 U.S.1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968), is unworkable. See Scott E. Sunby, A Return to Fourth
Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn.
L. Rev. 383, 406–14 (1988). This line of thinking suggests that the
probable cause requirement should be enforced through recognizing a
distinction between initiatory and responsive searches and that a strict
scrutiny standard should be applied to warrantless initiatory searches.
See id. at 425–27, 436–38, 442–45.
d. Determination of the validity of the search of Kern’s home under
article I, section 8 of the Iowa Constitution. While the landscape of the
special-needs doctrine as articulated by the United States Supreme
Court under the Fourth Amendment has been expanded considerably
since our decision in Cullison, it is unnecessary for us to specifically
decide today whether the doctrine is viable in the context of parole under
the Iowa Constitution. First, the need for new legal doctrines is best
considered when facts exist in a case to support an application of the
doctrine in a way that reveals its purpose and rationale. Second, it is
often helpful to adopt legal doctrines when experts and others in a
particular field of study have provided testimony and evidence in the
case of the practical need for the doctrine and the particulars of its
operation.
But, even if we were to recognize the existence of a special-needs
exception in the context of parole under the Iowa Constitution, we
reiterate that an obvious limitation would be for the doctrine to apply to
searches conducted by parole officers consistent with the parole mission.
See Ochoa, 792 N.W.2d at 286. This limitation has nothing to do with
the presence of police necessary to protect the safety of a parole officer
30
during a search, but with police presence that shifts the purpose of the
search from the goals of parole that support the special need to search to
the goals of general law enforcement. See id. This limitation is
consistent with the general contours of the doctrine developed by courts
in other jurisdictions and would be consistent with our limited
consideration of the doctrine. See, e.g., United States v. Consuelo-
Gonzalez, 521 F.2d 259, 266 (9th Cir. 1975) (rejecting a search of a
probationer’s home conducted by general law enforcement officers
because whatever “special and unique” interest probation officers have
“does not extend to law enforcement officers generally”); United States v.
Hallman, 365 F.2d 289, 292 (3d Cir. 1966) (“The veil afforded by
Provenzano’s position as Hallman’s parole officer cannot here serve as a
shield against what was plainly the action of the arresting officers to
effect an illegal search.”); Ochoa, 792 N.W.2d at 286, 288–89. The
special-needs doctrine simply cannot be used by police to make an end-
run around the constitutional protections otherwise available to parolees.
See Ochoa, 792 N.W.2d at 286, 291 (declining to consider whether the
special-needs doctrine applied to a search by a police officer and holding
police cannot search a parolee based on status alone); Cullison, 173
N.W.2d at 537 (holding parolee’s constitutional search and seizure rights
are not diluted by the fact of being on parole). By any approach
consistent with our foundational caselaw, the doctrine would require that
the search by a parole officer be designed to fit the special needs of
parole officers that would justify an intrusion into the house without
probable cause or a warrant. See Ochoa, 792 N.W.2d at 294–95 (Cady,
J., concurring specially).
In this case, the search failed to fit the special-needs rubric for two
reasons. First, the search was significantly entangled with a larger law
31
enforcement operation and primarily served general law enforcement
goals, suggesting the special-needs rationale should not be available at
all.6 See Ferguson v. City of Charleston, 532 U.S. 67, 79 & n.15, 121
6On appeal, the State also argues a balancing of Kern’s reasonable expectation
of privacy and the State’s interest in either crime prevention or parole supervision
allows her home to be searched with only reasonable suspicion; a result the United
States Supreme Court has reached both in the special-needs context, see Griffin, 483
U.S. at 875–76, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718–19 (holding that Wisconsin’s
maintenance of a probation system constitutes a special need, justifying departure from
the ordinary warrant and probable cause requirement of the Fourth Amendment), and
the general law enforcement context, see Knights, 534 U.S. at 121, 122 S. Ct. at 592,
151 L. Ed. 2d at 506 (holding a Fourth Amendment balancing test permitted a
warrantless search of a probationer’s home based on reasonable suspicion). The State
bases its argument on language in Ochoa. See 792 N.W.2d at 291 (“We have no
occasion to consider . . . the potential application of special needs to searches of
parolees conducted by parole officers [or] whether individualized suspicion amounting to
less than probable cause may be sufficient in some contexts to support a focused
search . . . .”). Kern replies that we actually rejected not just Samson’s results
(permitting warrantless, suspicionless searches of parolees) but also the generalized
balancing approach it employed to achieve those results.
The generalized balancing test employed in Knights appears to be very similar, if
not identical, to the one employed in Griffin after determining a special need exists.
Compare Knights, 534 U.S. at 119–21, 122 S. Ct. at 591–92, 151 L. Ed. 2d at 505–07,
with Griffin, 483 U.S. at 875–76, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718–19; see also
T.L.O., 469 U.S. at 351, 105 S. Ct. at 747, 83 L. Ed. 2d at 740 (Blackmun, J.,
concurring) (writing separately because the majority’s opinion engaging in a balancing
test “omits a crucial step in its analysis”). Knights itself appears to draw a close link
between the application of the special-needs and generalized reasonableness doctrines,
yet disclaims application of the special-needs doctrine. See 534 U.S. at 117, 122 S. Ct.
at 591–92, 151 L. Ed. 2d at 504–05. The Court held that the search condition of
probation “significantly diminished Knights’ reasonable expectation of privacy.” Id. at
120, 122 S. Ct. at 592, 151 L. Ed. 2d at 505. It considered the condition to “the salient
circumstance” in a “ ‘totality of the circumstances’ ” analysis, id. at 118, 122 S. Ct. at
591, 151 L. Ed. 2d at 505 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417,
421, 136 L. Ed. 2d 347, 354 (1996)), failing to consider either the issue of the
voluntariness of Knights’s acceptance of the parole condition or Knights’s privacy
interest in his home. In its discussion of balancing in this case, the State makes a
similar argument regarding the mandatory search condition in Kern’s parole agreement.
Of course, in Baldon, we concluded a mandatory search condition of parole did not
establish voluntary consent on the part of the parolee to conduct a search. See 829
N.W.2d at 802–03.
However, the State’s assertion that the facts surrounding the two encounters in
this case “gave the parole officer, Sergeant Garvey, the authority to search the
premises” suggests the State was arguing special needs, not generalized reasonableness
balancing. The State then argues Garvey properly delegated his authority to Officers
Chance and Jenkins. We construe this argument as a second layer of the State’s
32
S. Ct. 1281, 1289 & n.15, 149 L. Ed. 2d 205, 217 & n.15 (2001). The
evidence supported the conclusion that the police conducted the search
for their purposes, not the purposes of parole. See Ochoa, 792 N.W.2d at
286. Police sought to conduct a search to investigate suspicion of
criminal activity and then engaged in the search for the same purpose.
See id. Second, nothing about the search at issue in this case, other
than Kern’s status as a parolee, suggested the warrant requirement was
impractical or would “frustrate the governmental purpose behind the
search.” See Camara, 387 U.S. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at
938; cf. Ochoa, 792 N.W.2d at 291 (holding parole status alone may not
justify a warrantless, suspicionless search). The officers who conducted
the search even acknowledged in their testimony at the suppression
hearing that it would have been feasible to request a search warrant.
See Camara, 387 U.S. at 533, 87 S. Ct. at 1733, 18 L. Ed. 2d at 938; see
also Almeida-Sanchez v. United States, 413 U.S. 266, 283, 93 S. Ct.
2535, 2544–45, 37 L. Ed. 2d 596, 609 (1973) (Powell, J., concurring)
(“[I]nconvenience alone has never been thought to be an adequate reason
for abrogating the warrant requirement.”). Of course, as a search that
from all accounts appeared to be motivated by the interests of law
enforcement, there was no evidence to explain how the special needs of
_____________________
special-needs argument. In other words, the State asks us to hold that if a special need
exists, parole officers should be able to conduct full-scale searches of parolees’ homes
without a warrant supported by probable cause, so long as the parole officer has
reasonable suspicion the parolee has broken the law or violated parole. Thus, the
State’s argument does not just ask us to apply the reasonable-suspicion standard to a
search by law enforcement, but utilizes the proffered special needs of parole to make its
case. Because the record in this case is inadequate for us to decide whether Iowa’s
maintenance of a parole system presents a special need, it is similarly insufficient for us
to determine whether (assuming parole presents a special need under article I, section
8) a subsequent balancing of the relative interests of Kern and the State permit a full-
scale search of Kern’s home by police officers with only reasonable suspicion.
33
parole might justify the search without a warrant or how the actions of
police in conducting the search served the interests of parole.
Consequently, the search in this case required a warrant supported by
probable cause and issued by a neutral magistrate, absent a recognized
exception.
Accordingly, because we do not recognize the special-needs
doctrine under article I, section 8 in this case, we decline to depart from
forty years of Iowa precedent and justify the search of the Kern house
under that doctrine. Even if we did, however, under the search and
seizure protection afforded parolees under article I, section 8 of the Iowa
Constitution, the doctrine would not be available to justify a search
instigated and dominated by the needs and interests of law enforcement.
3. The community caretaking function. We next consider if the
community caretaking function justified the search. On this issue, Kern
does not suggest a standard under article I, section 8 of the Iowa
Constitution that is different from the standard employed by the United
States Supreme Court under the Fourth Amendment. As a result, we
use the federal substantive standard of community caretaking in this
case, but reserve the right to apply that standard in a more stringent
fashion than federal precedents. See State v. Bruegger, 773 N.W.2d 862,
883 (Iowa 2009).
The community caretaking function carried out by officers is an
exception to the warrant requirement of the Fourth Amendment. State v.
Crawford, 659 N.W.2d 537, 542 (Iowa 2003). A core notion of the
community caretaking exception is that, like special needs, it is “totally
divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.” Cady v. Dombrowski, 413
U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973). As
34
stated by another court: “The community caretaking function involves
the duty of police officers to help citizens an officer reasonably believes
may be in need of assistance.” State v. Mireles, 991 P.2d 878, 880 (Idaho
Ct. App. 1999). The determination of whether the community caretaking
exception applies
requires a three-step analysis: (1) was there a seizure within
the meaning of the Fourth Amendment?; (2) if so, was the
police conduct bona fide community caretaker activity?; and
(3) if so, did the public need and interest outweigh the
intrusion upon the privacy of the citizen?
Crawford, 659 N.W.2d at 543.
We have observed in the past that “the community caretaking
exception encompasses three separate doctrines: (1) the emergency aid
doctrine, (2) the automobile impoundment/inventory doctrine, and (3)
the ‘public servant’ exception noted in Cady.” See id. at 541; see also
Mary E. Naumann, Note, The Community Caretaker Doctrine: Yet Another
Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 330–41 (1999). In
cases such as this one, the first and third exceptions, which are very
similar, are at issue. See id. To take advantage of the community
caretaking exception in this context, the State must prove two things:
First, the searching officer must be “actually motivated by a perceived
need to render aid or assistance.” State v. Emerson, 375 N.W.2d 256,
259 (Iowa 1985) (citation and internal quotation marks omitted),
abrogated on other grounds by Horton v. California, 496 U.S. 128, 110
S. Ct. 2301, 110 L. Ed. 2d 112 (1990), as recognized by State v. Lyman,
776 N.W.2d 865, 872 (Iowa 2010). Second, the officer’s motivation must
be such that a “reasonable person under the circumstances would have
thought an emergency had existed.” Id. (citation and internal quotation
marks omitted).
35
At first glance, the community caretaking function does not
primarily focus on searches. Rather, the exception most often works to
authorize seizures. See, e.g., State v. Moore, 609 N.W.2d 502, 503–04
(Iowa 2000) (holding a park ranger’s stop of a vehicle to urge them to
slow down was reasonable); State v. Mitchell, 498 N.W.2d 691, 693–94
(Iowa 1993) (holding a trooper’s stop of a vehicle with a burned-out
taillight was reasonable). Cady, however, did involve a search of an
automobile. 413 U.S. at 437, 93 S. Ct. at 2526, 37 L. Ed. 2d at 712.
The aim of the search in Cady, however, was not to search for evidence of
any crime, but to search for defendant’s service revolver after a car
accident. Id. The defendant in Cady was a Chicago police officer who
had been involved in a car accident. Id. The aim of the police, who
believed Chicago police officers were required to carry their firearms at all
times, was to remove the defendant’s revolver from the vehicle before it
was towed away. Id. In conducting the search, the police found some
blood spatters in plain view, and the defendant later directed the police
to the location of a body. Id. The community caretaking exception has
similarly justified searches in Iowa cases. See, e.g., State v. Carlson, 548
N.W.2d 138, 142–43 (Iowa 1996) (holding entry into a home to search for
a missing person, after the person’s boyfriend gave conflicting
information about the missing person’s whereabouts, was reasonable
under the emergency aid exception); State v. Kersh, 313 N.W.2d 566,
568–69 (Iowa 1981) (holding that officer was justified in opening a car
door to check on the condition of the defendant, who was slumped over
the wheel), abrogated on other grounds by State v. Lake, 476 N.W.2d 55,
56 (Iowa 1991).
Nevertheless, the exception does not apply in this case. The
caretaking by the police in accompanying the DHS officer to Kern’s home
36
ended when the DHS officer and the police officers removed the children
from the home. If the rationale of the community caretaking exception is
to help either the subject of the search or, as in Cady, the public at large
(from the danger of an unattended firearm in an impounded vehicle),
then the community caretaking function was no longer served in this
case once the children were removed. After the children were removed,
the point of the search of Kern’s home was not to assist any member of
either the household or the public, but was to search for evidence of a
crime. The officers neither had the requisite motivation, nor would a
reasonable person believe that an emergency existed. See Emerson, 375
N.W.2d at 259. Accordingly, the community caretaking function did not
justify the search in this case under either the Fourth Amendment or
article I, section 8 of the Iowa Constitution.
4. Exigent circumstances. The State further argues that exigent
circumstances justified the warrantless search of Kern’s home. Kern
responds that nothing in the record supports application of the exigent-
circumstances exception to the warrant requirement of the Fourth
Amendment and article I, section 8. As with the community caretaking
exception, Kern does not articulate a different substantive standard for
analysis of the exigent-circumstances exception under article I, section 8
of the Iowa Constitution than is applied by the United States Supreme
Court under the Fourth Amendment. We therefore apply the federal
standard in this case, but reserve the right to apply it in a more stringent
fashion than under federal law. Bruegger, 773 N.W.2d at 884.
An exception to the warrant requirement exists for a search “based
on probable cause and exigent circumstances.” State v. Naujoks, 637
N.W.2d 101, 108 (Iowa 2001). To be clear, this exception only applies
“when coupled with existing probable cause.” State v. Strong, 493
37
N.W.2d 834, 836 (Iowa 1992). “The standard for probable cause is
whether a person of reasonable prudence would believe a crime has been
committed or that evidence of a crime might be located in the particular
area to be searched.” Naujoks, 637 N.W.2d at 108.
The exigent-circumstances exception includes a situation in which
there is a “probability that, unless immediately seized, evidence will be
concealed or destroyed.” Id. The exigent-circumstances exception is
important to narcotics investigations because drugs are “easily
destroyed.” See id. at 109. For example, in Strong, this court considered
whether the involuntary pumping of a suspect’s stomach to find evidence
of cocaine, which was rapidly metabolized by the suspect’s body,
qualified as exigent circumstances sufficient to relieve the warrant
requirement. 493 N.W.2d at 835. Importantly, the police actually saw
the defendant orally ingest the cocaine, after which Strong admitted the
materials he had just swallowed were cocaine. Id. at 835.
Turning to the case at hand, we first consider if the officers had
sufficient evidence to support probable cause. The probable cause
determination relied on five pieces of information. First, an anonymous
tip had been given two days earlier to a DHS officer, which alleged a
marijuana grow operation existed in Kern and Grant’s home. Second,
Kern and Grant generally refused consent to search during the first
encounter. Third, Grant maintained a defensive posture to prevent the
officers from going further into Kern’s home during the first encounter.
Fourth, Kern and Grant refused to give consent after the DHS
38
investigator threatened to remove Kern’s daughter and grandson from
the home.7 Finally, Kern was a parolee.8
An anonymous tip, alone, does not ordinarily contain sufficient
indicia of reliability to provide reasonable suspicion, let alone probable
cause. See Florida v. J.L., 529 U.S. 266, 270–72, 120 S. Ct. 1375, 1378–
79, 146 L. Ed. 2d 254, 260–61 (2000). On the other hand, a significantly
corroborated and verified anonymous tip has been held sufficient by the
United States Supreme Court under the Fourth Amendment. Alabama v.
White, 496 U.S. 325, 331–32, 110 S. Ct. 2412, 2416–17, 110 L. Ed. 2d
301, 309–10 (1990). In Griffin, the Court considered a tip from a police
officer to a parole officer that a probationer “had or might have guns”
sufficient to support reasonable suspicion. 483 U.S. at 879–80, 107
S. Ct. at 3171–72, 97 L. Ed. 2d at 721–22. Yet, the Court acknowledged
the tip would not support probable cause. Id. at 878, 107 S. Ct. at 3171,
97 L. Ed. 2d at 720; see also Adams v. Williams, 407 U.S. 143, 147, 92
7Approximately a week later, DHS Officer Huisman followed up with Kern’s
daughter. During that meeting, Kern’s daughter revealed she was aware that
marijuana was being grown in, and sold out of, the house. She also told Huisman that
marijuana was being consumed in the house. This information was not available to the
officers prior to the search. Accordingly, we do not consider it in determining whether
sufficient suspicion or cause existed to conduct a full search of the home. Courts
assessing whether official action was reasonable do not consider facts not actually
known to the officers. See Terry, 392 U.S. at 21–22, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906 (indicating the relevant inquiry is whether “the facts available to the officer at the
moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’
that the action taken was appropriate” (emphasis added)); United States v. Porter, 594
F.3d 1251, 1258 n.9 (10th Cir. 2010) (discussing suspicious facts, but ultimately not
considering them because the facts “were not known to the police officers”); see also
Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed. 2d 537, 544
(2004); Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443, 455 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.”).
8The record does not indicate whether either the officers or Kern’s parole officer
were aware of the exact charges on which Kern had been previously convicted.
39
S. Ct. 1921, 1924, 32 L. Ed. 2d 612, 617 (1972) (noting an unverified tip
would usually not support probable cause for a search or arrest).
Furthermore, neither the invocation of constitutional rights nor the
refusal to grant consent to an officer to perform a search can be used
alone to support either reasonable suspicion or probable cause. See
State v. Maddox, 670 N.W.2d 168, 173 (Iowa 2003).9 In the words of the
10th Circuit:
Any other rule would make a mockery of the reasonable
suspicion and probable cause requirements, as well as the
consent doctrine. These legal principles would be
considerably less effective if citizens’ insistence that searches
and seizures be conducted in conformity with constitutional
norms could create the suspicion or cause that renders their
consent unnecessary.
United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998).
We agree. If such a refusal of consent or invocation of
constitutional rights could supply officers with the requisite suspicion or
cause to conduct a search, then citizens would be exposed to a
dangerous catch-22 when officers request consent to conduct a search.
If consent is given, the search occurs. If consent is refused, the officer
may nevertheless conduct the search pursuant to the probable cause
generated by the refusal. This is an unacceptable consequence under
our constitutional framework.
9Similarly, the Supreme Court has held in the general Fourth Amendment
context, “a refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S.
429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389, 400 (1991). An analogous notion
is well-established in the Fifth Amendment context as well. See Doyle v. Ohio, 426 U.S.
610, 617–18, 96 S. Ct. 2240, 2244–45, 49 L. Ed. 2d 91, 97–98 (1965) (considering
postarrest silence “insolubly ambiguous” and holding prosecution may not comment on
postarrest silence at trial as evidence of guilt); Griffin v. California, 380 U.S. 609, 613–
14, 85 S. Ct. 1229, 1232–33, 14 L. Ed. 2d 106, 109–10 (1965) (holding prosecution may
not comment on defendant’s decision not to testify at trial).
40
We have similar doubts about the value of Grant’s defensive
posture as a factor in the probable cause determination. Furtive
behavior may be a proper consideration. See Illinois v. Wardlow, 528
U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000);
United States v. Sokolow, 490 U.S. 1, 8–9, 109 S. Ct. 1581, 1586, 104
L. Ed. 2d 1, 10–11 (1989). But, a defensive posture by an occupant of a
home in response to an intrusion by police is not indicative of probable
cause of a crime. A homeowner may want personal matters within the
privacy of the home protected from unwanted disclosure. The desire of a
homeowner to keep police from entering beyond the threshold of the
house during an unannounced visit is not probable cause the home
contains evidence of a crime.
As to the parole status of Kern, Ochoa prohibits using Kern’s
status as a parolee to augment the suspicion held by the officers such
that it alone could amount to probable cause. See 792 N.W.2d at 291.
Thus, we conclude the officers did not have probable cause to
search the Kern home. Additionally, nothing about the circumstances of
this case (other than the inherent destructibility of drugs) suggests that
the circumstances were exigent. The DHS received the anonymous tip
on November 3, but the home visit did not occur until November 5. Even
on November 5, the only circumstances conveying exigency in the
moment were Kern’s walk to her car in the driveway and the officers’
conjecture that, by invoking her search and seizure rights, Kern was
affirmatively hiding something.
While walking out to the car arguably raises some suspicion that
destruction of evidence was imminent, and the United States Supreme
Court has supported fairly conjectural applications of the exigent-
circumstances exception before, see Illinois v. McArthur, 531 U.S. 326,
41
330–31, 121 S. Ct. 946, 949–50, 148 L. Ed. 2d 838, 847 (2001), the
instant case is distinguishable on two critical grounds. First, McArthur
dealt not with an uncorroborated, anonymous tip, but rather the in-
person assertion of the defendant’s wife whose reliability was readily
ascertainable. Id. at 329, 332, 121 S. Ct. at 949, 950, 148 L. Ed. 2d at
846, 848. She could be “held responsible if her allegations turn[ed] out
to be fabricated.” See J.L., 529 U.S. at 270, 120 S. Ct. at 1378, 146
L. Ed. 2d at 260. Second, McArthur involved the comparatively minimal
intrusion of refusing to allow the defendant to reenter his trailer home
unsupervised while an officer obtained a warrant, see 531 U.S. at 329,
332, 121 S. Ct. at 949–50, 148 L. Ed. 2d at 846, 848, while in this case
the officers conducted a full-blown search of the defendant’s home.
That is not enough either for probable cause or for a finding of
exigent circumstances. Accordingly, we hold that exigent circumstances
did not justify the warrantless search of Kern’s home conducted in this
case under both the Fourth Amendment to the United States
Constitution and article I, section 8 of the Iowa Constitution.
V. Conclusion.
We conclude no exception to the warrant requirement of article I,
section 8 of the Iowa Constitution justifies the warrantless search of
Kern’s home. Accordingly, the evidence of marijuana seized from the
home should have been suppressed. We reverse the judgment and
sentence of the district court and remand for a new trial on the count of
conspiracy to manufacture a controlled substance.
REVERSED AND REMANDED.
All justices concur except Mansfield and Waterman, JJ., who
concur in part and dissent in part.
42
#11–1208, State v. Kern
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in Part III of the majority opinion. However, I dissent from
Part IV of the court’s opinion and believe the search should be upheld for
the reasons set forth in my dissenting opinion in State v. Baldon, ___
N.W.2d ___, ___, 2013 WL 1694553, at *44 (Iowa 2013) (Mansfield, J.,
dissenting). Accordingly, unlike the majority, I do not need to reach the
community caretaking exception, the exigent-circumstances exception,
the special-needs exception, or reasonable suspicion. All of these are
potential alternative grounds for upholding the search of Kern’s home.
Having said that, I wholeheartedly endorse the majority’s
discussion of the first two of these issues. In the course of a few pages,
the majority carefully applies the relevant Iowa and United States
Supreme Court precedents. It concludes that this case involves neither
community caretaking nor exigent circumstances as defined in the
caselaw. I agree with the majority’s treatment of these two matters.
Unfortunately, the majority’s discussion of special needs is missing
the same focus and faithfulness to precedent. Just a decade ago, we
applied that doctrine in rejecting a challenge to a search of a school
locker under both the Fourth Amendment and article I, section 8. See
State v. Jones, 666 N.W.2d 142, 145–50 & n.2 (Iowa 2003). Thus, we
have recognized special needs as an exception to the warrant
requirement under the Iowa Constitution.
In a footnote, my colleagues downplay Jones because it “featured
no independent analysis of the Iowa Constitution” and “was limited to an
examination of what the United States Supreme Court had said on the
subject.” I would categorically reject any suggestion that the worthiness
43
of our state constitutional precedents depends on the extent to which
they depart from federal constitutional precedent.
While the majority relegates Jones to a footnote, it devotes
considerable attention to State v. Cullison, a case we decided over forty
years ago under the Fourth Amendment, not article I, section 8. See 173
N.W.2d 533 (Iowa 1970). My colleagues mislabel Cullison as an “Iowa
Supreme Court case[] dealing with searches of parolees and probationers
under article I, section 8 of the Iowa Constitution.” In fact, the opinion
contains no reference to that provision. Cullison, rather, was our court’s
effort to determine the scope of “an Iowa State parolee’s Fourth
Amendment rights, privileges and immunities.” Id. at 537. We expressly
noted the absence of any United States Supreme Court precedent on
point. Id. at 535. Although Cullison, as a 1970 Fourth Amendment
precedent, has been superseded by later United States Supreme Court
Fourth Amendment decisions, my colleagues try to reincarnate it as a
decision on the meaning of Iowa’s search and seizure clause. See
generally Baldon, ___ N.W.2d at ___, 2013 WL 1694553, at *50 & n.49
(further discussing why Cullison does not bear upon article I, section 8).
Not only is the majority’s survey of Iowa special-needs precedent
historically inaccurate, its discussion is unnecessary and will introduce
further uncertainty into Iowa search and seizure law. One can hold
under existing Fourth Amendment precedent that the special-needs
doctrine does not apply because the search was strictly a law
enforcement operation. It was conducted in the absence of a parole
officer and was not in furtherance of a parole mission. See Ferguson v.
City of Charleston, 532 U.S. 67, 79 & n.15, 121 S. Ct. 1281, 1289 &
n.15, 149 L. Ed. 2d 205, 217 & n.15 (2001); Griffin v. Wisconsin, 483
U.S. 868, 873–74, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987).
44
If required to reach the special-needs exception, that would be my
conclusion.
The majority’s discussion of reasonable suspicion is also a puzzler
for me. The State’s position here is straightforward: Even if a
warrantless, suspicionless search of a parolee is deemed impermissible
under article I, section 8, a search based on reasonable suspicion should
be allowed. This is a serious argument, and we expressly left it open in
State v. Ochoa. See State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010)
(“We have no occasion to consider other questions, such as . . . whether
individualized suspicion amounting to less than probable cause may be
sufficient in some contexts to support a focused search . . . .”). We also
left it open in Baldon. See Baldon, ___ N.W.2d at ___, 2013 WL 1694553,
at *4 (majority opinion) (noting that the State made no argument “that a
balancing test under article I, section 8 would weigh in favor of the State”
and introduced no evidence of “any particular need . . . to search Baldon
. . . predicated on individual suspicion”).
In six pages of its appellate brief in this case, the State argues
clearly and succinctly that based on logic and precedent, reasonable
suspicion should be a sufficient ground for searching a parolee. It also
argues that reasonable suspicion was present here. The State uses the
phrase “reasonable suspicion” nine times in the course of these six
pages. Kern then replies to the State’s argument for four pages in her
reply brief. She contends that reasonable suspicion to search the house
did not exist.
Now, however, in a long footnote, my colleagues avoid the issue
that the parties have presented to them. Instead, they recharacterize the
State’s reasonable-suspicion argument as just a “second layer” of its
special-needs argument. This allows my colleagues not to address it.
45
But it is a separate argument, and we said so in Ochoa. See 792 N.W.2d
at 291 (identifying “(1) the potential application of special needs to
searches of parolees conducted by parole officers” and “(2) whether
individualized suspicion amounting to less than probable cause may be
sufficient in some contexts to support a focused search” as two questions
not answered by the court’s opinion).
I would address the reasonable-suspicion issue by applying
established Fourth Amendment precedent. In United States v. Knights,
the United States Supreme Court held unanimously that reasonable
suspicion was a sufficient basis to conduct a warrantless search of a
probationer’s house. See 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151 L.
Ed. 2d 497, 506 (2001). Knights is not a special-needs case; the search
was conducted by a detective, with no involvement by anyone who was
responsible for supervising the defendant’s probation. Id. at 115, 122 S.
Ct. at 589, 151 L. Ed. 2d at 503. Thus, Knights confirms that special
needs and reasonable suspicion are two distinct possible grounds for
sustaining a search of a probationer (or by inference, a parolee). See id.
at 117–18, 122 S. Ct. at 590–91, 151 L. Ed. 2d at 504. However, Knights
has no applicability when reasonable suspicion did not exist.
Reasonable suspicion was not present here. At the time of the
search of Kern’s home, the police had only the anonymous tip that
marijuana was being grown and processed in the house, plus the
occupants’ refusal to consent to a search. As noted by my colleagues, an
anonymous tip without any indicia of reliability generally does not
amount to reasonable suspicion. See Florida v. J.L., 529 U.S. 266, 271,
120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260–61 (2000) (holding that
“the bare report of an unknown, unaccountable informant” did not
amount to reasonable suspicion for a Terry stop); Alabama v. White, 496
46
U.S. 325, 329, 110 S. Ct. 2412, 2415–16, 110 L. Ed. 2d 301, 308 (1990)
(indicating that an anonymous tip standing alone would not normally
provide reasonable suspicion for a Terry stop). And I also share my
colleagues’ view that Kern’s and Grant’s refusals to consent to a search
cannot provide a basis for a search. See State v. Maddox, 670 N.W.2d
168, 173 (Iowa 2003) (“[M]ere refusal to consent to a search does not
establish probable cause.”); State v. Ripperger, 514 N.W.2d 740, 746
(Iowa Ct. App. 1994) (“The defendant’s refusal to consent to a blood test
cannot be used to support probable cause because such use denies the
defendant’s Fourth and Fifth Amendment rights.”).
In summary, I agree with the majority’s determinations on
sufficiency of the evidence. I would affirm the district court’s denial of
Kern’s motion to suppress for reasons already stated in my Baldon
dissent. Additionally, I agree with the majority’s handling of the
community caretaking and exigent-circumstance exceptions, but
disagree with its handling of the special-needs and reasonable-suspicion
matters.
Waterman, J., joins this concurrence in part and dissent in part.