State of Iowa v. Isaac Andrew Baldon III

IN THE SUPREME COURT OF IOWA
No. 10–0214
Filed April 19, 2013
STATE OF IOWA,
Appellee,
vs.
ISAAC ANDREW BALDON III,
Appellant.
Appeal from the Iowa District Court for Scott County, Mark J.
Smith, Judge.
Defendant appeals his conviction for drug dealing by challenging
the search of his automobile. REVERSED AND REMANDED FOR NEW
TRIAL.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly G.
Cunningham, for appellee.
2
CADY, Chief Justice.
In this case, we must decide whether a provision in a written
parole agreement that authorizes a parole officer or law enforcement
officer to conduct a warrantless, suspicionless search of a parolee and
the home, vehicle, and belongings of the parolee satisfies, by itself, the
consent exception to the reasonableness and warrant requirements of
the search and seizure clause of the Iowa Constitution. We conclude a
parole agreement does not satisfy the consent exception, and we reverse
the judgment and sentence of the district court. We remand the case for
a new trial.
I. Background Facts and Proceedings.
Isaac Baldon III was sentenced in 2003 to a term of incarceration
with the state penal system following convictions for possession of
controlled substances with intent to deliver and possession of a firearm
by a felon. He was granted parole on October 20, 2008. On November 3,
2008, Baldon and his parole officer, Kevin Peterson, signed a parole
agreement that contained seventeen standard conditions of parole and
five special terms of parole. One standard condition, paragraph P,
provided that Baldon would submit his “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.” The parole order directed that Baldon
would not be released on parole until he signed the agreement.
To combat recidivist probationers and parolees, the Bettendorf
Police Department commonly relied on paragraph P of the standard
terms of a parole agreement to conduct searches of parolees in the city.
Its officers were made aware of the consent-search provision and received
training in conducting parolee searches.
3
More specifically, Bettendorf police officers implemented a protocol
to check the Traveler Motel in Bettendorf several times each day as part
of a routine patrol. The motel was known by the police department as
perhaps the single highest crime location in Bettendorf. The Bettendorf
Police Department has made numerous arrests at the motel, a total of
110 in 2007 alone. Most of the arrestees were probationers and
parolees. The arrests most frequently involved drug offenses,
prostitution, gun offenses, and auto theft.
Under the search protocol for the motel, the patrolling officer
checks the license plate numbers of every vehicle in the parking lot to
locate parolees or probationers. If a vehicle in the lot belongs to a
parolee, the officer contacts the parolee’s parole officer, either to obtain
consent to search the parolee or to invite the parole officer to join the
police officer in a search of the parolee. Both the police department and
the parole officers are accustomed to using paragraph P as a basis to
search parolees, either without suspicion or suspicion based on the high-
crime nature of the area. The officer then contacts the front desk
attendant of the motel to ascertain whether the parolee is checked into
the hotel and, if so, to obtain the room number.
At approximately 8:30 a.m. on May 25, 2009, Officer Dennis Tripp
followed this protocol during his patrol of the Traveler Motel. The license
plate check of a 1996 Oldsmobile showed it was registered to Baldon.
Upon learning this, Officer Tripp called the shift commander, Sergeant
Piazza, and asked him to contact parole officer Kevin Peterson.
Pursuant to the protocol, Sergeant Piazza informed Peterson that
Baldon was at the motel. He also asked Peterson for permission to have
Officer Tripp search the motel room and vehicle. Peterson gave his
permission to search Baldon, but indicated he would like to be involved
4
in the search and would promptly meet the police officers at the motel.
Tripp learned Baldon was staying in room 29.
When Peterson arrived, Officer Tripp had been joined by Sergeant
Piazza and another Bettendorf police officer. The officers collectively
approached room 29 and knocked on the door. Eventually, Baldon
opened the door. A young woman, later revealed to be a minor, was
observed sitting on the bed. Peterson greeted Baldon and explained that
the parole agreement authorized the officers to conduct a search of the
motel room and Baldon’s vehicle.
The search of the motel room and Baldon’s person yielded no
incriminating evidence. Officer Tripp then took Baldon’s car keys and
searched Baldon’s car. He discovered a large quantity of marijuana.
After Tripp read Baldon his Miranda rights at the police station, Baldon
confessed he had received the marijuana in satisfaction of a debt. The
State charged Baldon with possession of a schedule I controlled
substance with intent to deliver, second or subsequent offense, under
Iowa Code sections 124.411 and 902.8 (2009) and possession of an
amount of marijuana greater than 42.5 grams in violation of Iowa Code
chapter 453B.
Baldon moved to suppress the marijuana seized from the search of
his vehicle under both the Iowa and Federal Constitutions. He claimed
the entry into his motel room and vehicle violated the Search and Seizure
Clauses of both the Iowa and Federal Constitutions because paragraph P
of the parole agreement constituted involuntary consent. The State
argued the search was reasonable because Baldon consented to the
searches by signing the parole agreement. It asserted Baldon was still
serving his sentence while on parole and whatever expectation of privacy
he may have had while on parole had been waived. At the hearing on the
5
suppression motion, Officer Tripp testified he conducted the search
based only on the agreement. He testified there had been no complaints
involving Baldon at the motel. Peterson, the parole officer, agreed the
search was “completely based on [the] agreement and nothing more.”
The district court denied Baldon’s motion to suppress. It found
Baldon consented to the search by signing the parole agreement and that
the consent made the search reasonable. It also found Baldon waived
any claim of privacy.
Baldon then waived his right to a trial by a jury, and the court
found him guilty of the charges. Following the imposition of sentence,
Baldon appealed.
II. Scope and Standard of Review.
“We review claims the district court failed to suppress evidence
obtained in violation of the federal and state constitutions de novo.”
State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). 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, 522–23 (Iowa 2011)). “ ‘Each case must be evaluated in
light of its unique circumstances.’ ” Id. (quoting Krogmann, 804 N.W.2d
at 523).
III. Issue Presented.
The fighting issue presented to the district court in response to the
motion to suppress was whether Baldon consented to the search by
signing the parole agreement. Although the State also seemed to argue
more generally before the district court that suspicionless searches of
parolees did not violate the Search and Seizure Clause of either the Iowa
or Federal Constitution because parolees have a diminished expectation
6
of privacy, it never argued the State had reasonable suspicion or other
reasonable grounds to conduct the search of Baldon apart from consent.
While the record is sketchy, the diminished-expectation-of-privacy
argument was, instead, tied to the State’s consent claim to support the
proposition that Baldon was aware he had little expectation of privacy
after he signed the parole agreement.
On appeal, the State reiterated its claim of consent. Alternatively,
however, the State argued the search was reasonable under a general
search-and-seizure analysis because Baldon’s minimal expectation of
privacy was outweighed by the interests of society in managing parolees
and preventing recidivism, as well as reasonable suspicion.
We find the State waived the general reasonableness argument by
not presenting it to the district court in a manner that would have
allowed the court to fully and properly address it. See State v. Ochoa,
792 N.W.2d 260, 291 (Iowa 2010) (recognizing that an argument not
made on an issue before the district court is waived). First, the State
made no argument that special governmental needs justified the search.
Thus, we have no opportunity to consider in this appeal whether the
State’s maintenance of a parole system presents “special needs[] beyond
the normal need for law enforcement, [which] make the warrant and
probable-cause requirement impractical.” See 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); see also Griffin v. Wisconsin, 483 U.S. 868,
875, 107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709, 718 (1987) (holding that
Wisconsin’s operation of a probation system constitutes a special need
beyond the normal need for law enforcement).
Second, the State made no argument to the district court that a
balancing test under article I, section 8 would weigh in favor of the State
7
in this case. For sure, the evidence at the suppression hearing was
directed at Baldon’s parole status and putative consent as the basis for
the search. See Ochoa, 792 N.W.2d at 291 (holding that parole status
alone is insufficient to justify search of a parolee). The State did not
introduce evidence of any particular need for the parole officer to search
Baldon, either predicated on individual suspicion, background
information particular to Baldon that would have been known to the
parole officer, or the general mission of parole. Thus, the only issue we
address on appeal is whether a parole agreement containing a consent-
to-search clause renders suspicionless and warrantless searches of
parolees reasonable under the search and seizure clause of the Iowa
Constitution.
Additionally, we only analyze the consent issue in this case on
state constitutional law grounds. The United States Supreme Court has
not yet directly weighed in on the issue to direct an outcome under the
Fourth Amendment or to aid us in our resolution under our state
constitution. See Samson v. California, 547 U.S. 843, 852 n.3, 126 S. Ct.
2193, 2199 n.3, 165 L. Ed. 2d 250, 259 n.3 (2006) (declining to consider
whether a search provision in a parole agreement generated under
California law constituted consent). Of course, it is beyond dispute that
the drafters of both our federal and state constitutions took the right to
be free from unreasonable, warrantless searches seriously. See generally
Ochoa, 792 N.W.2d at 269–75 (explaining events surrounding the
drafting and ratification of the Federal and Iowa Constitutions). Yet, we
need not comb for textual differences between the Fourth Amendment
and article I, section 8 to determine if different results might be achieved
under the two constitutions because the case only concerns the relatively
humble inquiry of whether an alleged grant of consent for police to
8
conduct warrantless, suspicionless searches pursuant to a parole
agreement is voluntary in the constitutional magnitude of the word
“voluntary.” Thus, our decision hinges on the meaning and spirit of
consent to justify the government’s intrusion without regard to the
constitution.
Moreover, consent is an exception to the requirements of both the
Iowa and Federal Constitutions, and it would be inconsistent with our
judicial role under the circumstances to eschew our state constitution
and interpret the issue under the Federal Constitution unless relief
would not be available to a claimant under our state constitution. As
Justice William Brennan sagely declared in his call to arms for state
courts:
Federalism need not be a mean-spirited doctrine that serves
only to limit the scope of human liberty. Rather, it must
necessarily be furthered significantly when state courts
thrust themselves into a position of prominence in the
struggle to protect the people of our nation from
governmental intrusions on their freedoms.
William J. Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 503 (1977). More directly, we
must remember that, at all times, “[t]he Iowa Constitution is the
cornerstone of governing in Iowa.” Varnum v. Brien, 763 N.W.2d 862,
875 (Iowa 2009).
In the final analysis, our right under principles of federalism to
stand as the final word on the Iowa Constitution is settled, long-
standing, and good law. See Ochoa, 792 N.W.2d at 281–86, 287–91
(rejecting the United States Supreme Court’s interpretation of the Fourth
Amendment as permitting warrantless, suspicionless searches of
parolees based on parole status alone); Bierkamp v. Rogers, 293 N.W.2d
577, 579 (Iowa 1980) (“The result reached by the United States Supreme
9
Court in construing the federal constitution is persuasive, but not
binding upon this court in construing analogous provisions in our state
constitution.”); State v. Tonn, 195 Iowa 94, 104–05, 191 N.W. 530, 535–
36 (1923) (rejecting the exclusionary rule adopted by the United States
Supreme Court for seizures of evidence by federal agents); see also
Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679, 84
L. Ed. 920, 924 (1940) (“It is fundamental that state courts be left free
and unfettered by us in interpreting their state constitutions.”). As more
fully elucidated by the concurring opinion, state constitutions have been
a crucial font of equality, civil rights, and civil liberties from the
incipience of our republic. Thus, the Supreme Court’s jurisprudence
regarding the freedom from unreasonable searches and seizures under
the Fourth Amendment—or any other fundamental, civil, or human right
for that matter—makes for an admirable floor, but it is certainly not a
ceiling. 1 Traylor v. State, 596 So. 2d 957, 961–63 (Fla. 1992).
With this background in mind, we proceed with what we now
recognize as the Tonn–Ochoa analysis.
1In the past, we did not always employ the doctrine of independent state
grounds to expand civil liberties. In Tonn, for example, we said:
We are now squarely confronted with the proposition as to
whether or not we will continue to follow the Supreme Court of the
United States in the rule of [Boyd v. United States, 116 U.S. 616, 638, 6
S. Ct. 524, 536, 29 L. Ed. 746, 753–54 (1886), and Weeks v. United
States, 232 U.S. 383, 393, 34 S. Ct. 341, 344, 58 L. Ed. 652, 656
(1914)]. The consideration of such a proposition may well “give us
pause.” The question is of great importance in the administration of the
criminal laws of this state.
195 Iowa at 104–05, 191 N.W. at 535. We ended up rejecting the exclusionary rule.
See id. at 107, 191 N.W. at 536. Of course, the United States subsequently
incorporated the Fourth Amendment’s exclusionary rule against the states in Mapp v.
Ohio, 367 U.S. 643, 655–57, 81 S. Ct. 1684, 1691–92, 6 L. Ed. 2d 1081, 1090–91
(1961). The incorporation doctrine commands that we no longer use independent state
grounds to sink below the federal floor.
10
IV. Discussion.
It is well-settled that warrantless searches are virtually “ ‘per se
unreasonable . . . subject only to a few specifically established and well-
delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219,
93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973) (quoting Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576,
585 (1967)); accord State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001).
One recognized exception to the warrant requirement of our constitution
is consent. State v. Reinier, 628 N.W.2d 460, 464–65 (Iowa 2001) (citing
Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44, 36 L. Ed. 2d at 858).
Under this exception, the reasonableness requirement of the Search and
Seizure Clause is satisfied when an individual consents to a search. See
Katz, 389 U.S. at 358 n.22, 88 S. Ct. at 515 n.22, 19 L. Ed. 2d at 586
n.22. The consent establishes a waiver of rights under the Search and
Seizure Clause. Thus, the question before us narrows to whether the
parole agreement in this case establishes consent.
The nature of contracts supports the general proposition that
consent to a search can be prospectively given pursuant to a contract.
See 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 other words, a person can contract
away the constitutional right to be free from unconstitutional searches.
See id.
In Zap, an aeronautical engineer entered into a contract with the
Department of the Navy to perform experimental work involving test
flights of airplanes. Id. at 626, 66 S. Ct. at 1278, 90 L. Ed. at 1480.
Under one of the terms of the contract, the engineer specifically agreed to
permit the government to search the account and billing records of his
11
business during the term of the contract. Id. at 627, 66 S. Ct. at 1279,
90 L. Ed. at 1481. A subsequent search of the records by the
government conducted pursuant to the contract led to fraud charges
against the engineer. Id. at 627, 628, 66 S. Ct. at 1279, 90 L. Ed. at
1481. In the course of the prosecution of the charges, the government
defended the warrantless search when challenged by the engineer on
grounds that the engineer waived his Fourth Amendment rights by
entering into the contract. Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at
1481. The Court held the search was valid on two levels: First, it found
the contract constituted a valid advance waiver of his privacy rights
because he agreed to permit the search “in order to obtain the
government’s business.” Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at 1482.
Second, the search itself was not carried out in an unreasonable manner,
but was done during regular business hours and without any threats or
force. Id.
When consent in any form is used to support a search, the concern
of the Search and Seizure Clause is that the consent be real and not a
“pretext for the unjustified police intrusion against which the Fourth
Amendment is directed.” Schneckloth, 412 U.S. at 228, 93 S. Ct. at
2048, 36 L. Ed. 2d at 863. Thus, our concern when presented with a
search-and-seizure claim in the context of contractual consent is that the
consent promised under the contract be voluntary. Cf. id. at 227, 93
S. Ct. at 2047–48, 36 L. Ed. 2d at 862–63.
Generally, contract terms are considered to be consensual or
voluntary for the same basic reason that courts normally enforce
contracts. Conceptually, courts enforce contracts because they are a
product of the free will of the parties who, within limits, are permitted to
define their own obligations. The consent found within a contract is
12
made evident by the bargain exchanged by the parties. In Zap, the
bargained-for exchange was enough, as with most contracts, to support
the consent of its terms. The engineer gave up his constitutional right to
be free from warrantless and suspicionless government searches in
return for obtaining government business. Zap, 328 U.S. at 628, 66
S. Ct. at 1279, 90 L. Ed. at 1482.
The United States Supreme Court has not addressed the specific
question whether a parole agreement executed by a parolee constitutes
valid consent to support a waiver of Fourth Amendment rights. See
Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3, 165 L. Ed. 2d at
259 n.3 (“Because we find that the search at issue here is reasonable
under our general Fourth Amendment approach, we need not reach the
issue whether ‘acceptance of the search condition constituted consent in
the Schneckloth . . . sense of a complete waiver of his Fourth Amendment
rights.’ ” (quoting United States v. Knights, 534 U.S. 112, 118, 122 S. Ct.
587, 591, 151 L. Ed. 2d 497, 504–05 (2001))). See generally Griffin, 483
U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (holding a search of a
probationer’s home pursuant to a Wisconsin probation regulation was
permissible under a special needs theory, but not addressing whether
the probationer had consented to the search under the regulation). We
too have not previously decided the question under the Iowa
Constitution. See Ochoa, 792 N.W.2d at 291.
Many courts across the nation have concluded that consent-search
provisions in probation agreements constitute a waiver of search-and-
seizure rights. See United States v. Barnett, 415 F.3d 690, 691–92 (7th
Cir. 2005) (finding consent-search provision in a probation agreement
was voluntary); State v. Montgomery, 566 P.2d 1329, 1330–31 (Ariz.
1977) (holding probationer voluntarily accepted consent-search provision
13
by accepting probation); People v. Bravo, 738 P.2d 336, 341 (Cal. 1987)
(“A probationer, unlike a parolee, consents to the waiver of his Fourth
Amendment rights in exchange for the opportunity to avoid service of a
state prison term.”); People v. Mason, 488 P.2d 630, 634 (Cal. 1971)
(holding probationer may waive claims to privacy by agreeing in advance
to permit searches at any time); Allen v. State, 369 S.E.2d 909, 910 (Ga.
1988) (finding consent-search provision as part of probation was
voluntarily obtained during plea negotiations); State v. Gawron, 736 P.2d
1295, 1297 (Idaho 1987) (holding conditional release into society of
probationer decreases expectation of privacy); State v. Devore, 2 P.3d
153, 156 (Idaho Ct. App. 2000) (discussing a probationer’s ability to
prospectively consent to warrantless, suspicionless searches in the
probation agreement); People v. Absher, 950 N.E.2d 659, 664–68 (Ill.
2011) (holding defendant contractually agreed to intensive probation to
avoid prison); Rivera v. State, 667 N.E.2d 764, 767 (Ind. Ct. App. 1996)
(holding defendant agreed to submit to searches as a condition of
probation); People v. Hellenthal, 465 N.W.2d 329, 330 (Mich. Ct. App.
1991) (“A probationer . . . has given his consent in return for more
lenient treatment.” (quoting People v. Peterson, 233 N.W.2d 250, 257
(Mich. Ct. App. 1975) (Danhof, J., concurring in part, dissenting in part));
State v. Anderson, 733 N.W.2d 128, 139 (Minn. 2007) (holding
acceptance of probation subject to a search condition “ ‘significantly
diminished [Anderson’s] reasonable expectation of privacy’ ” (quoting
Knights, 534 U.S. at 119–20, 122 S. Ct. at 591, 151 L. Ed. 2d at 504));
State v. Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980) (holding that
consent-search provision of a probation agreement was voluntary even
though defendant would have been sent to prison if he rejected it); State
v. Bollinger, 405 A.2d 432, 438 (N.J. Super. Ct. Law Div. 1979) (holding
14
defendant gave “a valid and knowing consent to a search of his dwelling
and automobile when he agreed [to the terms of probation]”); State v.
Mitchell, 207 S.E.2d 263, 264 (N.C. Ct. App. 1974) (holding a person may
consent to warrantless searches as a condition of a suspended sentence);
State v. Davis, 191 S.W.3d 118, 122 (Tenn. Crim. App. 2006) (“A
probationer consents to the waiver of his Fourth Amendment rights in
exchange for the opportunity to avoid incarceration.”); State v. Martinez,
811 P.2d 205, 209 (Utah Ct. App. 1991) (holding probationer
prospectively consents to searches by signing probation agreement);
Anderson v. Commonwealth, 507 S.E.2d 339, 341 (Va. 1998) (holding
defendant’s agreement to consent-search provision not coerced merely
because it was “one of two undesirable options”).
Some courts have concluded probationers do not voluntarily
consent to these search provisions, however. See United States v.
Consuelo-Gonzalez, 521 F.2d 259, 265 & n.15 (9th Cir. 1975) (rejecting
an argument that the “contract theory” of parole could be applied to
probationers so as to make “[s]ubmission to [to any search] the price of
probation”); Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979) (holding
condition of probation requiring probationer “to consent at any time to a
warrantless search by a law enforcement officer” was unconstitutional);
Commonwealth v. LaFrance, 525 N.E.2d 379, 381 n.3 (Mass. 1988) (“The
coercive quality of the circumstance in which a defendant seeks to avoid
incarceration by obtaining probation on certain conditions makes
principles of voluntary waiver and consent generally inapplicable.”);
Peterson, 233 N.W.2d at 255 (characterizing a search-provision of a
probation agreement as a “Bill of Attainder for the period of probation”
and holding that “when the waiver [was] conditioned on the surrender of
so hallowed a right, the so-called choice amount[ed] to no choice at all
15
[and] the probationer’s signed acceptance therefore was in legal effect
coerced and thus rendered nugatory” (footnote omitted)); State v.
Schlosser, 202 N.W.2d 136, 139 (N.D. 1972) (holding search provision in
probation order “constitute[d] a reasonable and necessary element of [the
court’s regulation of probationers,] which did not require the defendant’s
consent”); Tamez v. State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976)
(holding probationer’s acceptance of search provision of parole agreement
did not constitute “freely and voluntarily given” consent).
On the other hand, only a handful of courts have addressed the
same question in the context of parole agreements that we face in this
case, with mixed results. See United States ex rel. Coleman v. Smith, 395
F. Supp. 1155, 1157 (W.D.N.Y. 1975) (holding consent-search provision
in parole agreement was coerced and involuntary); Roman v. State, 570
P.2d 1235, 1241–42 (Alaska 1977) (holding released offenders do not
voluntarily consent to all conditions of parole); People v. Reyes, 968 P.2d
445, 448 (Cal. 1998) (holding suspicionless searches of parolees cannot
be justified by consent if prospective parolee does not have freedom to
accept or reject parole); People v. McCullough, 6 P.3d 774, 781 (Colo.
2000) (avoiding consent issue by relying on the special needs doctrine to
justify a parolee search); People v. Wilson, 885 N.E.2d 1033, 1042 (Ill.
2008) (adopting Samson instead of analyzing the parole agreement’s
search condition under a consent framework); State v. Heaton, 812
N.W.2d 904, 908 (Minn. Ct. App. 2012) (“By agreeing to [the search]
condition of parole, appellant diminished his reasonable expectation of
privacy.”); Himmage v. State, 496 P.2d 763, 765–66 (Nev. 1972) (holding
parolee voluntarily agreed to consent-search provision as a condition of
release into society); People v. Huntley, 371 N.E.2d 794, 798 (N.Y. 1977)
(holding the parolee’s signature on parole agreement “is not to be taken
16
as an unrestricted consent to any and all searches whatsoever or as a
blanket waiver of all constitutional rights to be secure from unreasonable
searches and seizures”); Sullivan v. Bunting, 975 N.E.2d 999, 1001 (Ohio
2012) (holding parolee consented to search of his e-mail based on the
parole agreement); State v. Benton, 695 N.E.2d 757, 762 (Ohio 1998)
(holding parolee waives constitutional search-and-seizure rights by
voluntarily signing parole agreement); Scott v. Pa. Bd. of Prob. & Parole,
698 A.2d 32, 36 (Pa. 1997) (holding parolee’s right to be free from
unreasonable searches and seizures was “unaffected by his signing of the
consent to search provision”), rev’d on other grounds, 524 U.S. 357, 369,
118 S. Ct. 2014, 2022, 141 L. Ed. 2d 344, 355 (1998); State v. Turner,
297 S.W.3d 155, 166 (Tenn. 2009) (adopting Samson “where the parolee
has agreed to warrantless searches by law enforcement officers”); State v.
Velasquez, 672 P.2d 1254, 1260 & n.4 (Utah 1983) (holding defendant
does not waive Fourth Amendment protection by signing parole
agreement, but the search condition does confirm right of parole officer
to conduct reasonable searches within scope of parole mission); Pena v.
State, 792 P.2d 1352, 1357–58 (Wyo. 1990) (“[A] parolee’s signature on a
parole agreement which permits warrantless searches as an
acknowledgement that parole officers have the right to conduct
reasonable searches.”); see also State v. Williams, 486 S.W.2d 468, 472
(Mo. 1972) (“[Parolees] have accepted the favor of parole subject to that
degree of surveillance and search required under the circumstances for
the effective supervision of the parolee and the protection of the public.”).
To begin our analysis, we largely set aside the cases dealing with
probation agreements. These cases are of limited value in analyzing the
consent issue in parole agreements because probationers often end up
on probation through plea bargaining and, consequently, maintain a
17
vastly superior bargaining power than parolees. Such a probationer has
the choice of demanding a trial to seek his or her freedom, which many
courts find gives rise to the type of bargaining power that renders
probation agreements consensual. See Barnett, 415 F.3d at 692
(“Nothing is more common than an individual’s consenting to a search
that would otherwise violate the Fourth Amendment, thinking that he
will be better off than he would be by standing on his rights.”). Thus, we
primarily focus on parolee cases.
More direct to the issue we must decide, our review of those cases
that enforce consent provisions of a parole agreement largely undervalue
the rights of parolees, rendering them inapposite for a helpful and tight
analysis under Iowa law. See Ochoa, 792 N.W.2d at 287–91. For
example, many of these cases simply follow Samson. See, e.g., Wilson,
885 N.E.2d at 1042 (applying Samson to a parole agreement with
different language than the language at issue in Samson); Turner, 297
S.W.3d at 166 (holding requirement that a prisoner agree to search
condition of parole “is reasonable in light of the parolee’s significantly
diminished privacy interests”). Like Samson, Wilson is not a true consent
case; it simply uses a search condition in a parole agreement to decrease
the parolee’s expectation of privacy to a nullity. See Wilson, 885 N.E.2d
at 1042; see also Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3,
165 L. Ed. 2d at 259 n.3. Similarly, although it preceded Samson,
McCullough was not actually a consent case either, but rather a special
needs case that essentially used the special needs doctrine to reach the
result reached by Samson. See McCullough, 6 P.3d at 780–81. Likewise,
Sullivan did not analyze the facts of the case for anything resembling
voluntariness. See 975 N.E.2d at 1001. Neither did its jurisprudential
progenitor, Benton. See 695 N.E.2d at 761. Rather, Benton simply
18
concluded parolees may be subjected to suspicionless searches based on
policy grounds largely related to the parolee’s status. See id. Our
rejection of Samson in Ochoa leads us to reject these cases as well. See
792 N.W.2d at 287–91.
Additionally, two cases pique our concern that suspicionless
consent searches of parolees also impact persons who live with parolees.
See McFerrin v. State, 42 S.W.3d 529, 534–35 (Ark. 2001) (holding parole
officer could extract consent from parolee’s sister prior to parolee’s
release); Devore, 2 P.3d at 156–57 & nn.1, 2 (holding a search
notification form requiring parolee’s roommates to submit to
suspicionless searches created valid consent). Another case cogently
explains the fear about these cases. Roman, 570 P.2d at 1241–42. The
Roman court 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
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. at 1243 (quoting 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, 816–17 (1976)
(footnotes omitted)). Roman actually rejected consent as a rationale for
upholding searches of parolees, although it held limited searches of
19
parolees were acceptable under another rationale. See id. at 1241–42,
1243–44. These collective observations give us pause to follow this line
of authority.
Those courts in other states that have rejected consent derived
from parole agreements as a theory for upholding searches of parolees do
so on the basis that such a condition of parole is coercive and, therefore,
involuntary. See, e.g., Coleman, 395 F. Supp. at 1157. These courts not
only find the general surrounding circumstances tend to weigh against
consent, particularly the custodial nature of the setting that produces
parole, but also the limited choices available to a prisoner seeking parole.
Coleman, 395 F. Supp. at 1157. The temptation of the “return to
normalcy,” combined with the fact that the parolee’s choices are either to
waive Fourth Amendment rights or to remain incarcerated, render the
resulting agreement to waive all Fourth Amendment protection coercive
and invalid. Id.; cf. Tamez, 534 S.W.2d at 692 (“The choice to reject
probation and go to prison or accept probationary condition was really no
choice at all. It was in effect coerced.”). This approach actually
resembles the path we have already begun to forge.
We have previously recognized the absence of bargaining power by
a parolee in a parole agreement. In State v. Cullison, we rejected the
notion of using contract law to support a voluntary surrender of
constitutional rights by a parolee on the basis that parole involves the
situation in which the State “has all of the bargaining power,” which
renders the contractual nature of an agreement illusory. 173 N.W.2d
533, 536–37 (Iowa 1970). 2
2Without expressly saying so, we decided Cullison based on the Iowa
Constitution. Cullison, 173 N.W.2d at 537–38. The keystone of our reasoning there
was article II, section 5 of the Iowa Constitution, which strips Iowa prisoners of a single
20
The lack of free will by a parolee to support consent-search
provisions of parole agreements was also recognized in the dissent in
Samson, which we followed in Ochoa. In his dissent in Samson, Justice
Stevens found the notion of parolee consent-to-search provisions to be
“sophistry.” 547 U.S. at 863 n.4, 126 S. Ct. at 2206 n.4, 165 L. Ed. 2d
at 267 n.4 (Stevens, J., dissenting). In truth, a parolee simply
has no “choice” concerning the search condition; he may
either remain in prison, where he will be subjected to
suspicionless searches, or he may exit prison and still be
subject to suspicionless searches. Accordingly, “to speak of
consent in this context is to resort to a ‘manifest fiction,’ for
‘the [parolee] who purportedly waives his rights by accepting
such a condition has little genuine option to refuse.’ ”
Id. (quoting 5 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 10.10(b), at 440–41 (4th ed. 2004)).
Similarly, Justice Kennedy recognized the weakness of using
consent predicated on the acceptance of adverse consequences in his
concurring opinion in Ferguson v. City of Charleston, 532 U.S. 67, 90–91,
121 S. Ct. 1281, 1295, 149 L. Ed. 2d 205, 224 (2001) (Kennedy, J.,
concurring). While he disagreed with the majority’s analysis regarding
the purported special needs justification of a practice by a public hospital
to require pregnant mothers who displayed certain symptoms and
characteristics to consent to drug testing, Justice Kennedy also spoke in
his concurring opinion to the nature of the consent dictated by the
hospital. See id. He wrote:
___________________
right: the right to vote. Id. The Iowa Constitution does not strip prisoners or parolees
of other rights. Thus, it is apparent that our holding in Cullison—that a parolee enjoys
a comparable level of constitutional protection from unreasonable searches and
seizures as nonparolees—was inextricably tied to the Iowa Constitution. Of course, our
reliance on the Iowa Constitution would have been irrelevant if Cullison was a Federal
Fourth Amendment case.
21
An essential, distinguishing feature of the special
needs cases is that the person searched has consented,
though the usual voluntariness analysis is altered because
adverse consequences (e.g., dismissal from employment or
disqualification from playing on a high school sports team)
will follow from refusal. The person searched has given
consent, as defined to take into account that the consent
was not voluntary in the full sense of the word. The consent,
and the circumstances in which it was given, bear upon the
reasonableness of the whole special needs program.
Id. (citations omitted). Thus, both our prior precedent and a line of
authority outside Iowa has revealed that a consent-to-search clause in a
parole agreement would not necessarily satisfy the type of consent to
qualify as an exception to the search-and-seizure requirement under our
Iowa Constitution.
The academic community has also recognized weaknesses in
treating consent searches as voluntary searches in the context of the
grant of parole. Cf. David T. Reindl, Bargains or Unconstitutional
Contracts? How Enforcement of Probation Orders as Contracts Could Take
the Reasonableness Out of Probation Searches, 33 New Eng. J. on Crim.
& Civ. Confinement 123, 145–51 (2007). A predominant factor in this
observation is the government’s overwhelming bargaining power during
negotiations tends to render these contracts essentially contracts of
adhesion, with some particularly objectionable clauses and conditions of
these contracts being both procedurally and substantively
unconscionable. Id. at 149–51. Moreover, while the title of a legal
document is not dispositive, a contractual theory may be especially
inapplicable to parole conditions when, as in this case, they are part of a
document that is itself entitled “Order.” See id. at 146. That caption or
title properly captures the real character of the transaction. Indeed, it
has been noted that, while power imbalance can be a key factor in
determining the validity of a contract, it has been an important factor in
22
the consent-to-search context since before Schneckloth. Christo Lassiter,
Consent to Search by Ignorant People, 39 Tex. Tech L. Rev. 1171, 1189–
91 (2007).
Professor LaFave has written extensively in this area and has
concluded that a coercive atmosphere necessarily militates against
finding that an ostensive consent is voluntary. 4 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 66,
81–90 (5th ed. 2012) [hereinafter LaFave]. The coercive atmosphere of
physical detention in an official location is of the “greatest significance.”
Id. at 88. Professor LaFave concedes that “ ‘custody alone has never
been enough in itself to demonstrate [coercion].’ ” Id. at 84–85 (quoting
United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46
L. Ed. 2d 598, 609 (1976)). Nonetheless, LaFave emphasizes the
distinction between cases in which the subject of the search was either
“free to leave or was in familiar surroundings at the time” and cases in
which the search subject was in custody. Id. at 89–90 (footnotes
omitted). Indeed, LaFave suggests this distinction was pivotal to the
outcome of Schneckloth itself, stating, “[T]he Supreme Court [in
Schneckloth] noted that, ‘since consent searches will normally occur on a
person’s own familiar territory, the specter of incommunicado police
interrogation in some remote station house is simply inapposite.’ ” Id. at
89 (quoting Schneckloth, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2dat 874).
LaFave’s recognition that “ ‘the location and conditions’ of even a
brief detention may be such as to foreclose a finding of voluntary
consent” is also instructive. Id. at 90 (footnote omitted) (quoting United
States v. Worley, 193 F.3d 380, 387 (6th Cir. 1999)). Even seemingly
innocuous circumstances such as a brief stop in an airport
23
“make it easy for implicit threats or subtle coercion to exert
tremendous pressure on an individual to acquiesce to the
officer’s wishes. In such a situation it would be easy to
misinterpret acquiescence to an officer’s demands as
consent; acquiescence cannot, of course, substitute for free
consent.”
Id. (quoting United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982)).
We have similarly recognized the potential for coercion even in brief
roadside stops. See State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011)
(holding officer’s request for consent in the squad car without informing
Pals he was free to leave or warning him regarding his right to refuse
consent was coercive). In other words, coercion can easily find its way
into human interaction when detention is involved.
LaFave has also traced the development of consent-to-search
clauses in probation and parole agreements to the now discredited “act of
grace” theory of parole. 5 LaFave § 10.10(b), at 527; see also Cullison,
173 N.W.2d at 536–37 (rejecting the “act of grace” theory of parole).3
LaFave notes the effort to revive the “act of grace” theory can be traced to
a 1967 article. 5 LaFave § 10.10(b), at 527. The article advised states to
“make the right to conduct a search and seizure . . . an
express condition of parole or probation, as the case may be,
which the defendant knowingly accepts. Constitutional
rights may be waived and if a court should hold that the
Fourth Amendment is applicable in these instances, the
rights could be waived in this manner.”
3The “act of grace” theory was built upon the argument that parole is a
“privilege.” 5 LaFave § 10.10(b), at 525–26. The United States Supreme Court rejected
this theory two years after the Iowa Supreme Court did. See Morrissey v. Brewer, 408
U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495 (1972). The Court stated:
It is hardly useful any longer to try to deal with this problem in terms of
whether the parolee’s liberty is a “right” or a “privilege.” By whatever
name, the liberty is valuable and must be seen as within the protection
of the Fourteenth Amendment.
Id.
24
Id. (quoting Alexander Holtzoff, The Power of Probation and Parole Officers
to Search and Seize, 31 Fed. Probation 3, 7 (1967)). As our own research
indicates, LaFave observed that many courts confronted with these
purported waivers of constitutional protections have approved of them.
Id. at 529–30.
However, LaFave disagrees with these holdings. Id. at 530–31. A
proper application of Schneckloth requires more than a superficial
inquiry into the existence of a parole agreement containing a consent
provision. Id. at 532. LaFave concludes by drawing a connection
between Schneckloth’s reliance on Fifth Amendment cases that analyze
the voluntariness of a confession and
the long established rule that a confession is not voluntary
when given in response to an assurance by the maker “that,
by so doing, he might at least obtain a mitigation of the
punishment for the crime which otherwise would assuredly
follow.”
Id. (quoting Bram v. United States, 168 U.S. 532, 565, 18 S. Ct. 183, 195,
42 L. Ed. 568, 581 (1897)). He doubts whether such a “quid pro quo . . .
could pass muster under Schneckloth” and opines this may be the very
reason the United States Supreme Court has consistently analyzed
searches of parolees and probationers on other grounds. Id.
Other commentators have argued that contractual thinking
nonetheless has a place in constitutional search-and-seizure analysis,
particularly when the government is not obligated to extend a certain
privilege or benefit in the first place. William J. Stuntz, Implicit Bargains,
Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 555
(1992) [hereinafter Stuntz]; see also Michael Chmelar, Contract Law and
Its Potential Impact on Parole and Probation Searches, 28 N. Ill. U. L. Rev.
43, 54–56 (2007); cf. Kathleen M. Sullivan, Unconstitutional Conditions,
25
102 Harv. L. Rev. 1413, 1422 (1989) (“What government benefits give rise
to unconstitutional conditions problems? Those benefits that
government is permitted but not compelled to provide. . . .
Unconstitutional conditions problems . . . do not arise if government is
obligated to provide a benefit.”). Yet, by analogy, while a government
could argue it could decline to offer public housing altogether and thus
should be able to require waiver of constitutional search-and-seizure
protection as consideration for offering the public housing in the first
place, this argument would be a “bluff,” given society’s acceptance of
public housing. Stuntz, 44 Stan. L. Rev. at 568. It would not necessarily
be a bluff if society did not value available options for affordable public
housing. Id. The application of these principles to searches of parolees
is somewhat difficult. On the one hand, granting parole decreases the
government’s financial burden of operating a prison system. See id. at
580. Articulating stricter standards for searches of parolees, on the
other hand, would likely limit the number of prisoners granted such
lighter treatment, as the costs of supervising probationers and parolees
would also rise. Id. at 581. Thus, this consequence would ultimately
have the effect of redistributing the loss of freedom from parolees subject
to enhanced supervision techniques to increased numbers of prisoners
whose grant of conditional freedom is either delayed or never granted.
Id.
Another commentator has argued that the government could not in
fact choose not to grant parole for at least some prisoners given that
prisons, like other government departments, face budgetary restrictions.
Antoine McNamara, Note, The “Special Needs” of Prison, Probation, and
Parole, 82 N.Y.U. L. Rev. 209, 237 (2007) [hereinafter McNamara].
McNamara notes that a recent study found that not offering parole or
26
probation would “more than triple the inmate population.” Id. at 237 &
n.191 (citing Lauren E. Glaze & Seri Palla, U.S. Dep’t of Justice, Bureau
of Statistics, Probation and Parole in the United States 1–2 (2005)).
Therefore, contrary to Judge Posner’s assertion in Barnett that parolees
and probationers “[give] up nothing” by agreeing to submit to
warrantless, suspicionless searches, see 415 F.3d at 692, the parolee or
probationer actually gets nothing in return for waiving their
constitutional search-and-seizure rights, McNamara, 82 N.Y.U. L. Rev. at
238.
Another article provides empirical data relevant to the other side of
Schneckloth’s policy balancing equation. In the context of waivers of
Fourth Amendment rights by probationers, one article surveyed forty-one
Wisconsin probation officers after the Supreme Court’s opinion in Griffin
and found that a blanket waiver of search-and-seizure protections that
“applies to all probationers is not necessary to adequately protect the
public.” See Howard P. Schneiderman, Comment, Conflicting
Perspectives from the Bench and the Field on Probationer Home
Searches—Griffin v. Wisconsin Reconsidered, 1989 Wis. L. Rev. 607, 610,
655 (1989) (arguing that, although probation officers appreciate
warrantless home searches, a low rate of frequency of home searches
combined with probation officer dislike of home searches indicates that
warrantless home searches are not necessary for the maintenance of
Wisconsin’s probation system). Indeed, Schneiderman acknowledges
that Justice Scalia’s analogy to administrative searches may be apt in
the context of home visits, but is inapposite in the context of “full-blown
searches,” which are generally conducted when the parole officer believes
that a parole violation or crime may be taking place. Id. at 656–57.
27
With all this in mind, we proceed to consider the voluntariness of a
prospective consent-to-search provision in a parole agreement used to
justify a search of a parolee. Importantly, the issue is not whether the
government can or cannot conduct a search of a parolee. The narrow
question before us is whether the government can conduct the search
based solely on consent required to be given by parolees as a condition of
release from prison. 4 Every search of a citizen by the government must
be supported by some recognized ground or justification, and we must
only decide if consent extracted from prisoners as a condition of release
on parole constitutes one such ground. We have no occasion in this case
to consider other grounds available to the State to justify such a search.
Unlike the situation in Zap, the voluntary nature of the consent to
search was not supported by the benefit of the bargain found on the face
of the parole agreement in this case. We appreciate that the bargain
under a contract can, at times, involve a choice between two unpalatable
4Our ultimate resolution of this case does not render the conditions of a parole
agreement unenforceable. The State may ordinarily impose any reasonable condition
on the grant of parole. Cf. State v. Valin, 724 N.W.2d 440, 445–46, 448–49 (Iowa 1996)
(recognizing the state may impose reasonable conditions of probation, but holding that
a probation condition requiring a sex offender who was convicted of operating while
intoxicated to be subjected to a penile plethysmograph exam for sexual arousal was
unreasonable). A violation of that condition can result in a revocation of parole and a
return to prison. Thus, our decision does not mean parolees are not required to follow
reasonable conditions of parole, including a reasonable search provision, or that they
could not have parole revoked for failing to comply with a term in the parole agreement.
This case only deals with the narrow question whether the government may enforce
compliance with a condition of probation through the contractual principle of consent.
The reasonableness standard does not supersede the voluntariness standard for
determining the validity of searches conducted to a purported consent. If it did, we
think very little would remain of the voluntariness standard articulated in Schneckloth.
This is precisely because the State imposes reasonable conditions; the prospective
parolee does not agree to them. See Iowa Admin. Code r. 201—45.1(2)(a) (“The parolee
may not be released on parole prior to the execution of the parole agreement. The
parole agreement shall contain the conditions of parole pursuant to rule 45.2(906) . . . .”
(emphasis added)); id. r. 201—45.2 (listing ten standards of condition of parolee with
which the parolee “shall” comply).
28
alternatives, which does not defeat the voluntariness of the consent. See
Barnett, 415 F.3d at 692 (declaring that a choice between accepting
probation as a term of a plea bargain is more valuable than the risk of
going to prison following a trial); Benton, 695 N.E.2d at 762 (rejecting an
argument that defendant “had no choice but to sign a waiver as a
condition of his parole, thereby implying that the waiver was not
voluntary”); Anderson, 507 S.E.2d at 341 (holding grant of consent in a
parole agreement was voluntary even though the terms of the agreement
were “dictated by the Commonwealth” and the defendant signed “only to
avoid time in jail”). However, this proposition does not mean a choice
between two unpalatable alternatives can never be coercive. See
Schneckloth, 412 U.S. at 224, 93 S. Ct. at 2046, 36 L. Ed. 2d at 861
(“ ‘Except where a person is unconscious or drugged or otherwise lacks
capacity for conscious choice, all incriminating statements—even those
made under brutal treatment—are “voluntary” in the sense of
representing a choice of alternatives.’ ” (quoting Paul M. Bator & James
Vorenberg, Arrest, Detention, Interrogation and Right to Counsel: Basic
Problems and Legislative Solutions, 66 Colum. L. Rev. 62, 72 (1966))).
Parole is simply one of those times when a choice to remain in prison
with no constitutional rights involving search and seizure or to gain
freedom with no constitutional rights involving search and seizure is
simply “no choice at all.” Tamez, 534 S.W.2d at 692. When a
constitutional right is at stake, more than a one-sided agreement is
needed to establish waiver of the right.
The obligation of courts to examine the voluntariness of an
agreement is nothing new and is supported by our law of contracts. For
instance, we refuse to enforce unconscionable contracts. See Casey v.
Lupkes, 286 N.W.2d 204, 207 (Iowa 1979) (recognizing unconscionability
29
as a generally available contract defense); see also Restatement (Second)
of Contracts § 208 (1981) (permitting a court to refuse to enforce all or
part of a contract if the contract was unconscionable when formed). The
doctrine is especially applicable to contracts of adhesion. See C & J
Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 179–81 (Iowa
1975). This refusal is based on a strong distaste for the enforcement of
unjust terms between parties of grossly disproportionate bargaining
power. As we quoted in a recent case:
“A bargain is not unconscionable merely because the parties
to it are unequal in bargaining position, nor even because
the inequality results in an allocation of risks to the weaker
party. But gross inequality of bargaining power, together with
terms unreasonably favorable to the stronger party, may
confirm indications that the transaction involved elements of
deception or compulsion, or may show that the weaker party
had no meaningful choice, no real alternative, or did not in
fact assent or appear to assent to the unfair terms.”
In re Marriage of Shanks, 758 N.W.2d 506, 515 (Iowa 2008) (quoting
Restatement (Second) of Contracts § 208 cmt. d). This language
accurately summarizes the nature of a consent-to-search provision in a
parole agreement and reveals that the failure to enforce search provisions
is consistent with other occasions when we have refused to enforce terms
of a contract that were, in all reality, not consensual.
A practical reality regarding the release of prisoners on parole
bolsters our conclusion. Generally, a prisoner in the Iowa state penal
system automatically earns one day of good-time credit for each day
served. See Iowa Code § 903A.2(1)(a). Accordingly, the time when parole
can be offered to an inmate is cut in half by good-time credits.
Additionally, parole in most cases is offered much earlier. For example,
according to a recent annual report from the board of parole, the average
time served in prison prior to obtaining parole on a conviction for
30
possession of marijuana with intent to distribute was only eighteen
months, not ten years. Iowa Board of Parole, Annual Report for State
Fiscal Year 2011 (2012), at 18 tbl. 6. The average time served prior to
the grant of parole for failure to affix a tax stamp was 18.6 months. Id.
The average time served for possession of a firearm by a felon was only
16.2 months, not five years. Id. Thus, the average prospective parolee
who committed the same crimes as Baldon would face more than eight
additional years in prison if he or she did not sign the parole agreement
containing a search provision. Under these circumstances, it is
unreasonable to believe that the reality of consent normally derived from
the benefits exchanged between the parties to a contract applies to parole
agreements. The amount of freedom typically at stake points to the
coercive nature of consent searches as a precondition to release.
Additionally, a prisoner essentially has nothing to bargain when it
comes to parole because the parole system does not offer early parole to
inmates who agree to be searched if paroled. Instead, inmates are
entitled to parole under a different calculation, but the parolee must
nevertheless agree to the terms of parole as a condition of release. Iowa
Admin. Code r. 201—45.1(2) (“The parolee may not be released on parole
prior to the execution of the parole agreement.”). Thus, the refusal to
consent to a warrantless and suspicionless search simply means many,
many more years in prison, while giving consent does not offer release to
a parolee earlier than otherwise entitled. More fundamentally, parolee
consent searches are conceptually detached from the concept of
bargaining because the State would be able to impose any reasonable
term of parole irrespective of the consent of the parolee.
From a practical standpoint, consent under these circumstances is
not real. We are duty bound to give the liberty in article I, section 8 of
31
our constitution the integrity it deserves and demands, and we must not
allow the government to avoid an important constitutional check on its
power by using an unfair play on human nature. To give article I,
section 8 its integrity, we must hold Baldon’s acceptance of the parole
agreement did not constitute consent under our precedent.
Moreover, there was no additional evidence in the record to reveal
Baldon voluntarily consented to a search, even in the absence of
bargaining power. The conclusory evidence in this case that Baldon read
and understood the terms of the parole agreement does not establish his
consent. Nevertheless, the State relied on the parole agreement alone to
establish consent, which we conclude is inadequate.
Considering our obligation to ensure that consent remains a
doctrine of voluntariness that functions with integrity, we conclude a
parole agreement containing a prospective search provision is insufficient
evidence to establish consent. Such a contract reveals an absence of
bargaining power on behalf of the parolee, rendering contract principles
inadequate to entitle the state to enforce compliance of a search
provision. The purported consent extracted from a prisoner as a
condition of release fails to constitute voluntary consent. As a
mandatory term of parole, such consent would also have the effect of
justifying the search on the basis of parole status. This is not permitted
under Ochoa. More is needed, and a consent provision in a parole
agreement does not supply this additional justification because it fails to
pass the test of voluntariness required under article I, section 8 of the
Iowa Constitution.
V. Conclusion.
For the reasons stated above, we hold that the search provision
contained in Baldon’s parole agreement does not represent a voluntary
32
grant of consent within our constitutional meaning. As such, the
suspicionless search of Baldon’s car violated article I, section 8 of the
Iowa Constitution. Accordingly, the district court’s denial of Baldon’s
motion to suppress is reversed, and the case is remanded to the district
court for further proceedings.
REVERSED AND REMANDED FOR NEW TRIAL.
Wiggins, Hecht, Appel, and Zager, JJ., join this opinion; Appel, J.,
files a separate concurring opinion; and Mansfield, J., files a dissenting
opinion in which Waterman, J., joins.
33
#10–0214, State v. Baldon
APPEL, Justice (concurring specially).
I join in the majority opinion, but write to review the foundations of
the well-established Iowa law that we jealously reserve our right to
construe our state constitution independently of decisions of the United
States Supreme Court interpreting parallel provisions of the Federal
Constitution.
I. Historic Role of State Constitutions.
A. State Constitutions, Declarations of Rights, and Judicial
Review Prior to Ratification of United States Constitution. Suppose
a leading historian asks you to identify a period in American history.
The historian tells you the period in question was “the most creative and
significant period of constitutionalism in modern Western history.” The
historian further advises you that many able and dedicated persons were
drawn away from their other important political responsibilities to engage
in legal drafting. Finally, the historian advises you that the end work
product of those who labored “captured the attention of intellectuals
everywhere in the world” and was “published and republished in several
European languages.” With these three clues, you might be tempted to
answer that the period being described is the several months in 1787
when the delegates to the Constitutional Convention in Philadelphia
drafted the United State Constitution. But you would be wrong.
The above description is based on the writing of Gordon Wood, a
leading historian of the Revolutionary Era and the Early Republic. He
was writing with such panache not about the Constitutional Convention
in Philadelphia, but about the period beginning in 1776 when states
began the process of drafting their own independent state constitutions.
See Gordon S. Wood, Foreword: State Constitution-Making in the
34
American Revolution, 24 Rutgers L.J. 911, 911, 913–14 (1993)
[hereinafter Wood].
While the Philadelphia convention and its aftermath have greater
notoriety today, the construction of independent state constitutions was
an important legal development. More than a decade before the
Constitutional Convention in Philadelphia, the Continental Congress in
May 1776 encouraged the establishment of state governments with “all
the powers of government exerted, under the authority of the people of
the colonies.” See Jack Rakove, The Beginnings of National Politics: An
Interpretative History of the Continental Congress 96–97 (1979); Merrill
Jensen, The Articles of Confederation: An Interpretation of the Social–
Constitutional History of the American Revolution 1774–1781 98 (1948);
see also IV Journals of the Continental Congress, 1774–1789 358
(Worthington C. Ford et al., ed. 1904–37) [hereinafter Journals of the
Continental Congress]. A few weeks later, the Declaration of
Independence declared that “these United Colonies are, and of Right
ought to be Free and Independent States.” The Declaration of
Independence para. 32 (U.S. 1776). By the time of the Declaration, the
states had already begun to develop their structures, including their
constitutions. Edmund S. Morgan, The Birth of the Republic, 1763–89
88–89 (3d ed. 1992) [hereinafter Morgan]; Wood, 24 Rutgers L.J. at 913.
John Adams, George Mason, James Madison, John Jay, and Governor
Morris, among others, participated in the drafting of these state
constitutions. I Melvin Urofsky & Paul Finkelman, A March of Liberty: A
Constitutional History of the United States 66, 69–70 (2d ed. 2011).
Thus, upon declaring independence, the people did not return to a
Hobbesian state of nature. Rather, the prior colonial governments
evolved into “Independent States” through a constitutional process. By
35
the end of 1776, ten state governments were in place, with the rest being
completed in 1780. Morgan at 90; Wood, 24 Rutgers L.J. at 913–14.
From the get-go, these state constitutions were designed to be stand
alone sources of law. As noted by Fletcher M. Green, the colonialists
debated extensively in the months preceding independence whether the
states should adopt a uniform constitution, to be prepared by the
Continental Congress. Fletcher M. Green, Constitutional Development in
the South Atlantic States, 1776–1860: A Study in the Evolution of
Democracy 52–54 (W.W. Norton & Co. 1966) [hereinafter Green].
Ultimately, following the proposal of John Adams, the Continental
Congress recommended that the states form their own constitutions that
“ ‘in the opinion of representatives of the people, best conduce to the
happiness and safety of their constituents in particular, and America in
general.’ ” Id. at 54 (quoting IV Journals of the Continental Congress at
342); see also Willi Paul Adams, The First American Constitutions:
Republican Ideology and the Making of State Constitutions in the
Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House
Books, expanded. ed. 2001) (describing Adams’s reasoning in
recommending to New Hampshire that it form its own government).
Thus, the colonialists expressly rejected uniformity. Green at 54.
The approval of the Articles of Confederation did not alter the
status of state constitutions as independent sources of law. The
constitutions of what the Declaration of Independence called
“Independent States” coexisted with the Articles of Confederation. Under
the Articles of Confederation, the states, not the people, were represented
in the Congress. John P. Kaminski, The Constitution Without a Bill of
Rights, in The Bill of Rights and the States: The Colonial and Revolutionary
Origins of American Liberties 16, 18 (Patrick T. Conley & John P.
36
Kaminski eds., 1992) [hereinafter Kaminski]. Article II of the Articles of
Confederation structured the relationship between the states and the
“United States, in Congress assembled.” See Articles of Confederation of
1781, art. II. It provided, “Each state retains its sovereignty, freedom,
and independence, and every power, jurisdiction and right, which is not
by this confederation expressly delegated to the United States, in
Congress assembled.” Id.
By the time of the Constitutional Convention in Philadelphia,
eleven states had written constitutions (Connecticut and Rhode Island
continued governance under modified colonial charters). Ralph
Ketcham, Introduction, in The Anti-Federalist Papers and the
Constitutional Convention Debates 1, 3 (Ralph Ketcham ed., 1986)
[hereinafter Ketcham]; Advisory Commission on Intergovernmental
Relations, State Constitutions in the Federal System 7 (1989) [hereinafter
State Constitutions in the Federal System]; see also generally Albert L.
Sturm, The Development of American State Constitutions, 12 Publius 57,
60–63 (1982). This state constitutional experience was recognized by
Thomas Jefferson, who is said to have calculated that by 1787 the states
collectively shared 150 years of experience in republican government.
Ketcham at 3. As a result, when the conclave opened in Philadelphia,
there was already a mature state constitutional tradition upon which the
founders could draw. Donald S. Lutz, The Origins of American
Constitutionalism 5 (1988). 5 Thus, the United States Constitution was
5There is substantial literature regarding the formation of state constitutions
prior to the adoption of the United States Constitution. See, e.g., Willi Paul Adams, The
First American Constitutions: Republican Ideology and the Making of State Constitutions
in the Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House Books,
expanded. ed. 2001); The Constitutionalism of American States (George E. Connor &
Christopher W. Hammons eds., 2008); Marc W. Kruman, Between Authority and Liberty:
State Constitution Making in Revolutionary America (1997); see also Gordon S. Wood,
37
not created by some kind of legal Big Bang, but instead was the
outgrowth of colonial experience and state constitutional precedents.
Many of these early independent state constitutions had
declarations of rights or similar provisions. See 1 Jennifer Friesen, State
Constitutional Law: Litigating Individual Rights, Claims, and Defenses,
§ 1.03[1], at 1–7 to 1–10 (4th ed. 2006) [hereinafter Friesen]. Eight of
these early state constitutions (Virginia, Pennsylvania, Delaware,
Maryland, North Carolina, Vermont, Massachusetts, and New
Hampshire) had search and seizure provisions. Bernard Schwartz, The
Great Rights of Mankind: A History of the American Bill of Rights 88
(Madison House 1992) [hereinafter Schwartz]. Of particular interest is
the Massachusetts search and seizure provision. This important search
and seizure provision was drafted by John Adams, who as a young
lawyer was thrilled to hear James Otis rail in Paxton’s case against the
new writs of assistance issued by the English crown. See, e.g., Leonard
W. Levy, Origins of the Bill of Rights 157–59 (1999) [hereinafter Levy];
John M. Murrin, From Liberties to Rights: The Struggle in Colonial
Massachusetts, in The Bill of Rights and the States: The Colonial and
Revolutionary Origins of American Liberties 63, 88–91, 94 (Patrick T.
Conley & John P. Kaminski eds., 1992) [hereinafter Murrin]. Adams’s
experience influenced the text of the provision. Levy at 158; Murrin at
91. It states:
Every subject has a right to be secure from all unreasonable
searches, and seizures, of his person, his houses, his papers,
and all his possessions. All warrants, therefore, are contrary
to this right, if the cause or foundation of them be not
previously supported by oath or affirmation; and if the order
___________________
Foreword: State Constitution-Making in the American Revolution, 24 Rutgers L.J. 911
(1993).
38
in the warrant to a civil officer, to make search in suspected
places, or to arrest one or more suspected persons, or to
seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or
seizure: and no warrant ought to be issued but in cases, and
with the formalities prescribed by the laws.
Mass. Const. of 1780, art. XIV.
In contrast to many of the Revolutionary Era state constitutions,
the Articles of Confederation had no bill of rights. Under the Articles of
Confederation, however, Congress had no power over individuals and
only limited authority with respect to the states. Kaminski at 18. Thus,
there arguably was no need for a bill of rights as Congress had no direct
authority over the people. Id.
In addition, state court judges operating under Revolutionary Era
state constitutions were developing the principle of judicial review in a
series of state constitutional cases decided before ratification of the
United States Constitution and Marbury v. Madison, 5 U.S. (1 Cranch)
137, 2 L. Ed. 60 (1803). On several occasions, state courts ruled state
statutes purporting to limit the right to jury trials were unconstitutional.
For example, in the 1780 New Jersey case of Holmes v. Walton, an
unpublished decision, the court found a statute permitting trial by a six-
man jury unconstitutional under the New Jersey Constitution. Schwartz
at 95; see also State v. Parkhurst, 9 N.J.L. 427, 444 (1802) (describing
that “the act upon solemn argument [in Holmes] was adjudged to be
unconstitutional, and in that case inoperative”). In 1786 and 1787, New
Hampshire courts found unconstitutional an act providing that certain
actions for damages totaling less than ten pounds could be tried by a
justice of the peace without a jury. William Michael Treanor, Judicial
Review Before Marbury, 58 Stan. L. Rev. 455, 475–76 & n.83 (2005). In
the unreported Rhode Island case Trevett v. Weeden, the Rhode Island
39
Supreme Court struck down a law passed in 1786 that imposed a
penalty, without requiring a jury trial, on those who did not accept the
state’s paper money in place of gold and silver. Id. at 476–78. In Bayard
v. Singleton, 1 N.C. (Mart.) 5 (1787), the North Carolina Supreme Court
concluded a statute barring loyalists from challenging the state’s seizure
of their property was unconstitutional because the North Carolina
Constitution provided for a jury trial whenever property was at issue in a
legal dispute. Treanor, 58 Stan. L. Rev. at 478–79. These pre-Marbury
cases expanded to other areas of the law. For example, in 1784 the New
York City Mayor’s Court held a statute could not override a treaty or
international law in Rutgers v. Waddington, also unreported. Schwartz at
97. See generally Treanor, 58 Stan. L. Rev. at 480–87. To arrive at this
conclusion, the court noted New York’s constitution adopted the common
law and, therefore, the law of nations. Treanor, 58 Stan. L. Rev. at 483.
In what has become known as the “Case of the Prisoners,” reported as
Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782), a number of Virginia
judges embraced judicial review in finding certain pardons
unconstitutional. See William Michael Treanor, The Case of the Prisoners
and the Origins of Judicial Review, 143 U. Pa. L. Rev. 491 (1994).
Three points emerge from the above discussion. First, prior to the
ratification of the United States Constitution, state constitutions, the
first American constitutions, were independent sources of law. Second,
many of the independent state constitutions, unlike the Articles of
Confederation, had bill-of-rights-type provisions designed to restrain
arbitrary government action, including provisions related to government
search and seizure. Finally, at least some state courts were developing
the principle of judicial review under their state constitutions decades
prior to Marbury v. Madison.
40
B. The Impact of Ratification and Adoption of the Bill of
Rights of the United States Constitution on Independent State
Constitutional Law. The United States Constitution was not designed
to obliterate the states and their preexisting constitutions, but to instead
draw them into a federal system with many of their functions largely
intact. As noted by Herbert Wechsler in the first sentence of his seminal
law review article, maintenance of the state’s residual sovereignty was
the “means and price of the formation of the Union.” Herbert Wechsler,
The Political Safeguards of Federalism: The Role of the States in the
Composition and Selection of the National Government, 54 Colum. L. Rev.
543, 543 (1954).
Of course, the proposed United States Constitution imposed
important limitations on the states. Federal law would prevail over state
law under the Supremacy Clause. 6 U.S. Const. art. VI, cl. 2. The
Guarantee Clause provided that the United States “shall guarantee” that
every state has a “Republican Form of Government.” Id. art. IV, § 4.
Further, Article I, Section 10 prohibited states from entering into treaties,
alliances or confederations, from coining money, from laying imposts or
duties on imports or exports except to an extent necessary to execute
inspection laws, from maintaining armies during times of peace, from
6Under the Supremacy Clause, “[T]he Judges in every State shall be bound [by
federal law], any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. As a result, the United States Supreme
Court has invalidated state constitutional provisions that violate the United States
Constitution. See, e.g., Romer v. Evans, 517 U.S. 620, 635–36, 116 S. Ct. 1620, 1629,
134 L. Ed. 2d 855, 868 (1996) (striking down Colorado constitutional provision affecting
gay rights); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783, 827, 115 S. Ct. 1842,
1845, 1866, 131 L. Ed. 2d 881, 888, 914–15 (1995) (striking down Arkansas
constitutional provision imposing term limits on members of Congress); Cummings v.
Missouri, 71 U.S. (4 Wall.) 277, 322–23, 329–30, 18 L. Ed. 356, 362–63, 365 (1867)
(striking down loyalty oath imposed by Missouri Constitution).
41
entering into alliances with foreign states, from engaging in war unless
actually invaded, and from enacting certain kinds of legislation, such as
bills of attainder, ex post facto laws, and laws impairing the right of
contracts. Id. art. I, § 10.
Although the draft United States Constitution contained a number
of provisions related to civil liberties,7 founders at the Constitutional
Convention in Philadelphia did not consider whether to include a bill of
rights in the proposed constitution until five days from the end of the
convention. Richard Labunski, James Madison and the Struggle for the
Bill of Rights 9 (2006) [hereinafter Labunski]. George Mason, who was
largely responsible for the Declaration of Rights in the Virginia
Constitution, and Elbridge Gerry of Massachusetts proposed that a
committee be appointed to draft bill of rights provisions to be
incorporated into the Federal Constitution. Id. at 8–12; see also Robert
Allen Rutland, The Birth of the Bill of Rights 1776–1791 112–13 (1955)
[hereinafter Rutland]. One scholar has suggested the convention decided
not to include a bill of rights perhaps out of fatigue as much as anything
else. Labunski at 9.
Overall, however, the founders looked to the states to protect
individual liberties. At the Constitutional Convention, James Wilson
observed that the purpose of the states was “to preserve the rights of
individuals.” I Records of the Federal Convention of 1787 356 (Max
7Civil liberties provisions in the original draft Constitution included the
prohibition against suspension of the writ of habeas corpus except in case of rebellion
or invasion, the prohibitions of bills of attainder and ex post facto laws, the provisions
for impeachment of all civil officers, the guarantee of jury trials in criminal cases, the
narrow definition of treason, and the ban on religious qualifications for office holding.
See U.S. Const. art. I, § 9, cls. 2–3; id. art. II, § 4; id. art. III, § 2, cl. 3; id. art. III, § 3, cl.
1; id. art. VI, cl. 3.
42
Farrand ed., 1937). Similarly, in Federalist No. 45, Madison stressed
that under the Constitution, “The powers reserved to the several States
will extend to all the objects, which, in the ordinary course of affairs,
concern the lives, liberties and properties of the people . . . .” The
Federalist No. 45, at 236 (James Madison) (Garry Wills ed., 1982).
Madison repeated the liberty theme in Federalist No. 51 by declaring, “In
the compound republic of America, the power surrendered by the people,
is first divided between two distinct governments . . . . Hence, a double
security arises to the rights of the people.” The Federalist No. 51, at 264
(James Madison) (Garry Wills ed., 1982) (emphasis added).
Notwithstanding Madison’s efforts, antifederalists made much hay
over the failure of the Constitution to ensure in more specific language
that the power of states would be preserved. See Pauline Maier,
Ratification: The People Debate the Constitution, 1787–1788 86–95 (2010)
[hereinafter Maier]. As noted above, the Articles of Confederation
expressly reserved all powers except those specifically enumerated to the
states. Opponents of the Constitution wondered why such a provision
was omitted from the proposed United States Constitution. See, e.g., id.
at 90–92.
In addition, opponents to the Constitution asked why the framers
failed to include a bill of rights. See, e.g., id. at 44, 87. Opponents noted
that many state constitutions contained a bill of rights, and they
wondered why a similar approach was not taken in the United States
Constitution. Id. at 44 (citing views of George Mason). The response of
the supporters of the Constitution that the federal government was one
of enumerated powers and that a bill of rights was therefore unnecessary
was unpersuasive to many. Id. at 79.
43
While proponents of the Constitution were able to obtain
unconditional ratification of the Constitution, their success was in part
obtained by agreeing to a process in which future curative amendments
to the Constitution would be considered. See, e.g., Kaminski at 25–38
(providing overview of ratification process, in which seven states,
including Massachusetts, Virginia, and New York, ratified the
Constitution and proposed amendments); Maier at 192–98 (describing
the striking of a deal between the Federalists and John Hancock that
included proposing future amendments to the Constitution at the first
meeting of Congress and political support for Hancock in future
elections). Relying in part on the rights provisions of the Massachusetts
and Pennsylvania Constitutions, Madison drafted and Congress proposed
amendments to the ratified United States Constitution that came to be
known as the Bill of Rights. See, e.g., Levy at 35–43; Rutland at 202.
The addition of the Bill of Rights to the United States Constitution
did not affect the independent nature of state constitutional provisions
related to civil liberties. Under the Tenth Amendment, “powers not
delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” U.S.
Const. amend. X. Plainly, the United States Constitution does not
delegate the judicial power to provide final, authoritative interpretation of
state constitutions. And while there are many provisions of the United
States Constitution limiting the power of states, there are no provisions
prohibiting or restricting the power of state courts to interpret
authoritatively their state constitutions. See State v. Schwartz, 689
N.W.2d 430, 438 (S.D. 2004) (Konenkamp, J., concurring) (citing Tenth
Amendment in finding that state supreme court had an obligation to
decide whether the South Dakota Constitution required stricter
44
standards for search and seizure than required by the United States
Constitution).
The new amendments to the United States Constitution created a
Federal Bill of Rights. These provisions were not originally thought to
apply against the states. The issue was confronted in Barron v. Mayor of
Baltimore, 32 U.S. (7 Pet.) 243, 250–51, 8 L. Ed. 672, 675 (1833), when
the strongly nationalistic Chief Justice John Marshall wrote for the
United States Supreme Court that the provisions of the Federal Bill of
Rights did not apply against the states. Chief Justice Marshall wrote,
“Each state established a constitution for itself, and in that constitution,
provided such limitations and restrictions on the powers of its particular
government, as its judgment dictated.” Id. at 247, 8 L. Ed. at 674. Thus,
the Federal Bill of Rights did not supplant the state constitutional
provisions upon which it was patterned, nor did it trump the provisions
of state constitutions adopted after its enactment.
The result of Barron was “that state protections of liberty were
more relevant to most people than the protections in the federal Bill of
Rights.” Paul Finkelman & Stephen E. Gottlieb, Introduction: State
Constitutions and American Liberties, in Toward a Usable Past: Liberty
Under State Constitutions 9 (Paul Finkelman & Stephen E. Gottlieb eds.,
1991). As noted by Chief Justice Cady,
Our Iowa Constitution, like other state constitutions, was
designed to be the primary defense for individual rights, with
the United States Constitution Bill of Rights serving only as
a second layer of protection, especially considering the latter
applied only to actions by the federal government for most of
our country’s history.
45
Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional History
Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and
Civil Liberties, 60 Drake L. Rev. 1133, 1145 (2012).
At the time of the adoption of the current Iowa Constitution in
1857, Barron was good law. As a result, the Iowa Constitution contains
a number of provisions, including article I, section 8, Iowa’s search and
seizure provision, which are designed to protect individual liberties
against encroachment by state officials. See generally Iowa Const. arts.
I–II. While contemporary sources related to the Iowa Constitutional
Convention are limited, there is no reason to conclude the framers of the
Iowa Constitution expected that article I, section 8 would receive a
cramped interpretation. They placed the Iowa Bill of Rights at the
beginning of the Iowa Constitution to emphasize its importance. State v.
Ochoa, 792 N.W.2d 260, 274 (Iowa 2010). This priority placement has
led one observer to declare that, more than the United States
Constitution, the Iowa Constitution “emphasizes rights over mechanics.”
Donald P. Racheter, The Iowa Constitution: Rights over Mechanics, in The
Constitutionalism of American States 479, 479 (George E. Connor &
Christopher W. Hammons eds., 2008). Further, George Ellis, Chairman
of the Committee on the Preamble and Bill of Rights, stated the
committee wanted provisions in the Iowa Bill of Rights that “would
enlarge, and not curtail the rights of the people” and would “put upon
record every guarantee that could be legitimately placed there in order
that Iowa . . . might . . . have the best and most clearly defined Bill of
Rights.” 1 The Debates of the Constitutional Convention of the State of
Iowa 100 (W. Blair Lord rep., 1857). The committee did not consider
itself some kind of Committee on Constitutional Redundancy and
Duplication. Like the drafters of Revolutionary Era state constitutions
46
that predated the United States Constitution, the Iowa founders
considered the development of independent state constitutional rights as
serious business.
In sum, the ratification of the United States Constitution and the
subsequent adoption of the Bill of Rights had no impact on the status of
state constitutions as an independent source of law. Moreover, the
drafters of the Iowa Constitution were well aware of this basic feature of
the federalist system when they fashioned the independent civil liberties
provisions of the Iowa Constitution of 1857.
C. Impact of the Civil War Amendments on Independent State
Constitutional Law. The passage of the Thirteenth, Fourteenth, and
Fifteenth Amendments after the Civil War significantly altered the
relationship between the federal government and the states. In
particular, unlike most of the provisions of the original Bill of Rights in
the United States Constitution, the Equal Protection, Due Process, and
Privileges and Immunities Clauses of the Fourteenth Amendment
expressly applied against the states. See U.S. Const. amend. XIV, § 1.
Like the passage of the Bill of Rights, the enactment of the Civil
War Amendments did not alter state constitutions as an independent
source of law. Instead, they simply provided a federal overlay to the state
constitutional regime recognized by Chief Justice Marshall in Barron. As
noted by Michigan Supreme Court Justice Thomas Cooley shortly after
the Civil War, each state had the power to determine for itself what
provisions are in its state constitution and “what protection shall be
thrown around the person or property of the citizen.” Thomas M. Cooley,
A Treatise on the Constitutional Limitations Which Rest Upon the
Legislative Power of the States of the American Union 33 (Legal Classics
Library 1987) (1868).
47
After the Civil War, the Iowa Supreme Court recognized its
independent authority to construe the state constitution. In McClure v.
Owen, 26 Iowa 243, 255 (1868), we declared:
It does not require argument to show that the . . .
same principles that require the federal courts to follow the
decisions of the State courts in construing statutes, and to
recognize rules of local law, require the federal courts to
follow the construction given the Constitution by the highest
State tribunal. There is no distinction that warrants the
disregard of the rule in cases involving the construction of
the State Constitution.
On questions of human rights, Iowa courts have traditionally
demonstrated a remarkably broad vision. In In re Ralph, 1 Morris 1, 7
(1839), the Territorial Supreme Court rejected a claim that a slave
present in a free state should be returned to his master, noting that
under Iowa law a slave within the free territory of Iowa is not “property”
and that the laws regarding illegal restraint apply “to men of all colors
and conditions.” While not based on the yet unadopted Iowa
Constitution, the broad reasoning, tone, and attitude toward equality in
In re Ralph stands in striking contrast to the disastrous majority opinion
of the United States Supreme Court nearly two decades later in Dred
Scott v. Sanford, 60 U.S. 393, 15 L. Ed. 691 (1857).
In Clark v. Board of Directors, 24 Iowa 266 (1868), we rejected the
argument that a school district could forbid African American children
from attending a school with whites on grounds of race. In Clark, our
interpretation of applicable statutes was driven by a broad conception of
article IX, section 12 of the Iowa Constitution, which requires the
education of “all the youths of the State.” Id. at 274–77. In Coger v.
Northwest Union Packet Co., 37 Iowa 145 (1873), we rejected the notion
that African Americans could be subjected to different treatment when
48
being transported by public carriers. In reaching this far-sighted
conclusion, we cited article I, section 1 of the Iowa Constitution, which
declares, “All men are, by nature, free and equal,” and noted that “[u]pon
it we rest our conclusion in this case.” Id. at 153–55. These Iowa
equality cases have little in common with the majority opinion of the
United States Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16
S. Ct. 1138, 41 L. Ed. 256 (1896), and much more in common with the
powerful dissent by Justice John Marshall Harlan, id. at 555–64, 16 S.
Ct. at 1145–48, 41 L. Ed. at 262–65 (Harlan, J., dissenting).
The independent Iowa constitutional tradition was repeatedly
recognized in the first half of the twentieth century. In State v. Height,
117 Iowa 650, 654–55, 91 N.W. 935, 938 (1902), we held as a matter of
state constitutional law that the privilege against self-incrimination was
incorporated in the due process clause of article I, section 9 of the Iowa
Constitution even though at the time the United States Supreme Court
did not incorporate the Fifth Amendment against the states pursuant to
the Due Process Clause of the Fourteenth Amendment. Then, in
McCollum v. McConaughy, 141 Iowa 172, 176, 119 N.W. 539, 540–41
(1909), we noted that, although we followed the United States Supreme
Court’s pronouncements on questions of federal constitutional law, in
our construction of a parallel state constitutional provision, “[w]e are not
bound . . . by any obligation imposed upon us in the federal Constitution
to uphold a State statute merely because, in the view of the Supreme
Court of the United States, it is not unconstitutional.”
The responsibility of this court to exercise independent judgment
under the Iowa Constitution was well illustrated in State v. Tonn, 195
Iowa 94, 191 N.W. 530 (1923). In Tonn, we considered whether holdings
by the United States Supreme Court in Boyd v. United States, 116 U.S.
49616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), under the Fourth and Fifth
Amendments of the United States Constitution should be followed under
parallel provisions of the Iowa Constitution. Tonn, 195 Iowa at 104, 191
N.W. at 535. In Boyd, the United States Supreme Court held that the
forced production of business papers absent probable cause and their
admission at a subsequent hearing “were erroneous and
unconstitutional proceedings.” 116 U.S. at 638, 6 S. Ct. at 536–37, 29 L.
Ed. at 754. Using a methodology anticipating our approach in State v.
Cline, 617 N.W.2d 277 (Iowa 2000), abrogated on other grounds by State
v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001), State v. Ochoa, 792
N.W.2d 260 (Iowa 2010), and State v. Pals, 805 N.W.2d 767 (Iowa 2011),
the majority in Tonn noted that the decision of the United States
Supreme Court in Boyd “give[s] us pause” and then proceeded to canvas
academic authorities, authorities in other states, and dissenting federal
cases in concluding the approach of the United States Supreme Court in
Boyd should no longer be followed in Iowa. Tonn, 195 Iowa at 103–09,
191 N.W. at 534–36 (internal quotation marks omitted). In Cline, we
rejected Tonn, holding the “good faith exception” to the exclusionary rule
was incompatible with article I, section 8 of the Iowa Constitution. Cline,
617 N.W.2d at 292–93. Nonetheless, the approach in Tonn shows
judicial recognition in Iowa of this court’s responsibility to engage in
independent constitutional analysis of state constitutional provisions
that parallel federal constitutional provisions.
Clearly, the Civil War Amendments to the United States
Constitution did not supplant the provisions of the Iowa Bill of Rights.
Our remarkable legal heritage demonstrates that construction by the
United States Supreme Court of a parallel provision of the United States
Constitution does not bind our court on issues under the Iowa
50
Constitution. Independent state constitutional analysis is nothing new,
but has been long recognized in Iowa law.
D. Incorporation of the Bill of Rights Through the Due Process
Clause. Beginning in 1925, the United States Supreme Court
incorporated provisions of the Bill of Rights of the United States
Constitution against the states under the Due Process Clause of the
Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666, 45
S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925) (stating freedoms of speech
and press are so fundamental that they are protected from state
interference under the Due Process Clause). For the Fourth Amendment,
this process began with Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct.
1359, 1361, 93 L. Ed. 1782, 1785–86 (1949), and was extended by Mapp
v. Ohio, 367 U.S. 643, 660, 81 S. Ct. 1684, 1694, 6 L. Ed. 2d 1081, 1093
(1961). Nothing in the Supreme Court’s incorporation doctrine as it
related to the Fourth Amendment altered the independent nature of state
constitutional provisions related to search and seizure. Instead,
incorporation of the provisions of the Bill of Rights of the United States
Constitution against the states through the Due Process Clause of the
Fourteenth Amendment established a federal floor related to civil
liberties.
While incorporation was a major constitutional advancement,
Justice John Marshall Harlan II was concerned that the nationalization
of the Bill of Rights’ protections would lead to a substantive dilution of
those protections. 8 See Patrick E. Higginbotham, The Continuing
8Of course, it is impossible to determine the degree to which the changes in the
United States Supreme Court’s Fourth Amendment jurisprudence were due to the
“federalism discount” that Harlan predicted or to changes in personnel on the United
States Supreme Court. Explicit statements in Supreme Court opinions during the post-
incorporation era show sensitivity to federalism concerns. Meachum v. Fano, 427 U.S.
51Dialogue of Federalism, 45 U. Kan. L. Rev. 985, 988–91 (1997). In the
search and seizure case of Ker v. California, 374 U.S. 23, 46, 83 S. Ct.
1623, 1646, 10 L. Ed. 2d 726, 745 (1963) (Harlan, J., concurring),
Justice Harlan wondered whether the United States Supreme Court
“[was] prepared to relax Fourth Amendment standards in order to avoid
unduly fettering the States.” A few years later, Justice Harlan saw “a
major danger of the ‘incorporation’ approach—that provisions of the Bill
of Rights may be watered down in the needless pursuit of uniformity.”
Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88 S. Ct. 1444, 1466 n.21,
20 L. Ed. 2d 491, 514 n.21 (1968) (Harlan, J., dissenting). In his dissent
___________________
215, 229, 96 S. Ct. 2532, 2540, 49 L. Ed. 2d 451, 462 (1976) (rejecting an approach to
impose through the Due Process Clause “a nationwide rule mandating transfer
hearings”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S. Ct. 1278,
1302, 36 L. Ed. 2d 16, 49 (1973) (noting that “it would be difficult to imagine” a case
with greater impact on the federal system if the Court would abrogate systems of
financing public education); Johnson v. Louisiana, 406 U.S. 356, 375, 92 S. Ct. 1620,
1640, 32 L. Ed. 2d 152, 167 (1972) (Powell, J., concurring) (arguing that incorporating
“ ‘jot-for-jot and case-for-case’ every element of the Sixth Amendment” against the
states would derogate “principles of federalism basic to our system”). The tendency of
the United States Supreme Court to underenforce constitutional norms due to the
national scope of the Court’s opinions is recognized in the literature. See, e.g.,
Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv. L.
Rev. 1324, 1351–60 (1982) (citing institutional differences, the need for national
solutions, and sensitivities to federalism as tending to dilute federal constitutional
rulings and compelling a cautious and conservative approach to rules while noting state
judges are more politically responsive, states have a greater capacity for innovation, and
state judiciaries are common law courts that are more used to policy analysis);
Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional
Norms, 91 Harv. L. Rev. 1212, 1218–20 (1978); George C. Thomas III, When
Constitutional Worlds Collide: Resurrecting the Framers’ Bill of Rights and Criminal
Procedure, 100 Mich. L. Rev. 145, 147–48 (2001) (noting the Court has never had the
appetite to apply the provisions of the Federal Bill of Rights to the states as rigorously
as it has applied them to the federal government). The tendency to dilute constitutional
rules as a result of federalism concerns has been cited in a number of state court cases.
See, e.g., State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring)
(observing Supreme Court has been “hesitant to impose on a national level far-reaching
constitutional rules binding on each and every state”); Alderwood Assocs. v. Washington
Envtl. Council, 635 P.2d 108, 115 (Wash. 1981) (noting that rules in United States
Supreme Court decisions “invariably represent[] the lowest common denominator”).
52
in Williams v. Florida, 399 U.S. 78, 136, 90 S. Ct. 1893, 1925, 26 L. Ed.
2d 446, 474 (1970) (Harlan, J., dissenting), Justice Harlan noted that the
decision to establish a six person jury “simply reflects the lowest
common denominator in the scope and function of the right to trial by
jury in this country.” Finally, in a draft concurrence to Johnson v.
Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), and
Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 184 (1972),
that was never filed because of his intervening death, Justice Harlan
wrote that incorporation threatened “ ‘to chill the Sixth Amendment out
of existence’ and ‘might well spell the demise—under the inescapable
pressures of federalism—of many other provisions of the Bill of Rights.’ ”
Tinsely E. Yarbrough, John Marshall Harlan: Great Dissenter of the
Warren Court 291 (1992) (internal quotation marks omitted).
In the period following the incorporation revolution ending with
Mapp, there is no doubt the strength and scope of the Fourth
Amendment’s protection has been dramatically reduced by the United
States Supreme Court. Pre-Mapp, there were a couple exceptions to the
warrant requirement; post-Mapp there are nearly two dozen such
exceptions. California v. Acevedo, 500 U.S. 565, 582–83, 111 S. Ct.
1982, 1992–93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J., concurring).
The role of consent has been changed from its narrow characterization in
Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897),
and Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461(1938), to its protean formulation in Schneckloth v. Bustamonte, 412 U.S.
218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The strength of the
exclusionary rule in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341,
58 L. Ed. 652 (1914), has been substantially eroded by the “good faith
53
exception” to the exclusionary rule. See United States v. Leon, 468 U.S.
897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
As a result, in implicit recognition of the difficulties arising from
incorporation of the Bill of Rights into a national system of rules, the
post-incorporation United States Supreme Court has repeatedly
emphasized the ability of states to expand the scope of constitutional
protections under their state constitutions. See, e.g., California v.
Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1630, 100 L. Ed. 2d 30, 39
(1988) (“Individual States may surely construe their own constitutions as
imposing more stringent constraints on police conduct than does the
Federal Constitution.”); Michigan v. Mosley, 423 U.S. 96, 120, 96 S. Ct.
321, 334, 46 L. Ed. 2d 313, 331 (1975) (Brennan, J., dissenting) (calling
on states “to impose higher standards governing police practices under
state law than [are] required by the Federal Constitution”); Oregon v.
Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570, 575
(1975) (repeating that “a State is free as a matter of its own law to impose
greater restrictions . . . than those this Court holds to be necessary upon
federal constitutional standards” (emphasis added)); Cooper v. California,
386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730, 734 (1967) (noting
that Supreme Court holding “does not affect the State’s power to impose
higher standards on searches and seizures than required by the Federal
Constitution if it chooses to do so”). See generally Shirley S.
Abrahamson, Criminal Law and State Constitutions: The Emergence of
State Constitutional Law, 63 Tex. L. Rev. 1141, 1142 n.3 (1985)
[hereinafter Abrahamson] (discussing cases). In 2008, Justice Scalia
observed in Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 1607,
170 L. Ed. 2d 559, 571 (2008), that “States are free to regulate
[warrantless] arrests however they desire.”
54
Cumulatively, the realities in the post-incorporation era were as
follows: the United States Supreme Court incorporated most of the Bill of
Rights provisions of the United States Constitution against the states
through the Due Process Clause of the Fourteenth Amendment, but as a
result, federalism concerns exerted a new narrowing and restraining
influence on the interpretation of federal civil liberties provisions. In the
post-incorporation era, the United States Supreme Court repeatedly
emphasized the ability of states to adopt more stringent protections
under state constitutions.
II. Status of Independent State Constitutional Law Today
After Incorporation of the Bill of Rights.
A. Rebirth of Independent State Constitutional Law. After
incorporation, many state courts tended to follow or adopt the approach
of the United States Supreme Court in interpretation of parallel
provisions under state constitutions. This tendency to simply follow
federal caselaw was in part due to the fact that federal law was more
expansive than prior state constitutional law. Lawyers also often relied
solely on federal constitutional law or regarded state and federal law as
interchangeable in their advocacy in state courts. See State Constitutions
in the Federal System at 49.
Beginning in the 1960s, however, a growing number of states
began to rediscover the independent nature of their state constitutional
provisions. Sometimes called the “new judicial federalism,” the high
courts of California, New York, New Jersey, Oregon, Washington, and
Wisconsin were particularly active, followed by those of New Mexico,
Indiana, Georgia, Ohio, Michigan, Connecticut, Minnesota, Utah,
55
Pennsylvania, and many other states. 9 The cases characterize the
examination of independent state constitutional grounds by state courts
not as some kind of aberration, but as a solemn duty. See, e.g., Burling
v. Chandler, 804 A.2d 471, 476 (N.H. 2002) (per curiam) (recognizing that
oath taken to honor state constitution makes it the justices’ duty to
apply the state constitution when it does not conflict with the Federal
Constitution); Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999)
(noting even when Federal Constitutional claim is discharged, supreme
court must undertake independent analysis of Pennsylvania Constitution
“ ‘each time a provision of that fundamental document is implicated’ ”
(citation omitted)); State v. Johnson, 729 N.W.2d 182, 189 n.7 (Wis. 2007)
(observing court’s duty to examine state constitution independently even
if conclusion does not differ from that under Federal Constitution).
As noted by Professor G. Alan Tarr more than a decade ago, the
emphasis on the independent nature of state constitutions of the “new
judicial federalism” is simply “no longer new.” G. Alan Tarr, The New
Judicial Federalism in Perspective, 72 Notre Dame L. Rev. 1097, 1098–99
9There is voluminous literature on the independent power of state judiciaries to
construe provisions of their state constitutions. The most encyclopedic volume focusing
on individual rights is Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses (4th ed. 2006). Three frequently cited surveys of state
constitutional law are James A. Gardner, Interpreting State Constitutions: A
Jurisprudence of Function in a Federal System (2005), G. Alan Tarr, Understanding State
Constitutions (1998), and Robert F. Williams, The Law of American State Constitutions
(2009). See also New Frontiers of State Constitutional Law: Dual Enforcement of Norms
(James A. Gardner & Jim Rossi eds., 2011); Robert A. Schapiro, Polyphonic Federalism:
Toward the Protection of Fundamental Rights (2009); Jeffrey M. Shaman, Equality and
Liberty in the Golden Age of State Constitutional Law (2008); Michael E. Solimine &
James L. Walker, Respecting State Courts: The Inevitability of Judicial Federalism (1999);
G. Alan Tarr & Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation
(1988); Toward a Usable Past: Liberty Under State Constitutions (Paul Finkelman &
Stephen E. Gottlieb eds., 1991). Many of the concepts in this opinion have been
developed and elaborated upon by Robert F. Williams in The Law of American State
Constitutions and Jennifer Friesen in State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses.
56
(1997). Contemporary courts and scholars have recognized and
reaffirmed the historically well-established concepts that state
constitutional provisions are independent of parallel provisions of the
Federal Constitution and that state supreme courts may depart from
existing federal precedent in reaching their conclusions regarding state
constitutional law. There are textbooks, 10 monographs, 11 hundreds of
law review articles,12 and thousands of reported cases discussing the
independent nature of state constitutional provisions.
10See, e.g., Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses (4th ed. 2006) [hereinafter Friesen]; Randy J. Holland,
Stephen R. McAllister, Jeffrey M. Shaman & Jeffrey S. Sutton, State Constitutional Law:
The Modern Experience (2010); Robert F. Williams, State Constitutional Law: Cases and
Materials (4th ed. 2006).
11See Tim J. Watts, State Constitutional Law Development: A Bibliography 3–5
(1991) (listing monographs published prior to 1991 on state constitutional law).
12See id. at 5–36 (listing over 400 articles published prior to 1991 on state
constitutional grounds). A tiny sampling of the literature on state constitutional law
dealing with the developments in specific states includes Charles W. Johnson & Scott P.
Beetham, The Origin of Article I, Section 7 of the Washington State Constitution, 31
Seattle U. L. Rev. 431 (2008); Patty Jones, Search and Seizure—Methodological
Contention Results in Conflicting Authority When Deciding Similar State and Federal
Constitutional Claims. Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001), 33 Rutgers L.J.
1462 (2002); Jack L. Landau, The Search for the Meaning of Oregon’s Search and
Seizure Clause, 87 Or. L. Rev. 819 (2008); Jack L. Landau, Should State Courts Depart
from the Fourth Amendment? Search and Seizure, State Constitutions, and the Oregon
Experience, 77 Miss. L.J. 369 (2007); Douglas Holden Wigdor, What’s in a Word?
Comparative Analysis of Article I, § 12 of the New York State Constitution and the Fourth
Amendment to the United States Constitution as Interpreted by the New York Court of
Appeals and the United States Supreme Court, 14 Touro L. Rev. 757 (2008); Colin M.
Black, Note, “Shooting an Elephant”—Massachusetts Maintains Reasonable Suspicion:
Protecting Individual Privacy During Traffic Stops and Battling Racial Profiling, 6 Suffolk
J. Trial & App. Advoc. 215 (2001); Dennis J. Buffone, Note, Traffic Stops, Reasonable
Suspicion, and the Commonwealth of Pennsylvania: A State Constitutional Analysis, 69
U. Pitt. L. Rev. 331 (2007); Richard C. Miller, Comment, Begging to Defer: Lessons in
Judicial Federalism from Colorado Search and Seizure Jurisprudence, 76 U. Colo. L. Rev.
865 (2005); and Kenneth F. Kirwin, Minnesota’s Constitution: An Essential Tool in
Search and Seizure Cases, 65 Bench & Bar Minn., Nov. 1, 2008, at 29.
57
The development of independent state constitutional law has not
always been a smooth process. A number of state supreme courts have
expressed frustration with lawyers who have failed to advance state
constitutional arguments. In order to encourage proper advocacy, a
number of state supreme courts have published what are referred to in
the literature as “teaching opinions,” which review the rationale for
independent state constitutional grounds. See, e.g., Friedman v. Comm’r
of Pub. Safety, 473 N.W.2d 828 (Minn. 1991); Davenport v. Garcia, 834
S.W.2d 4 (Tex. 1992); State v. Jewett, 500 A.2d 233 (Vt. 1985); Dworkin
v. L.F.P., Inc., 839 P.2d 903 (Wyo. 1992). See generally Robert F.
Williams, The Law of American State Constitutions 144–46 (2009)
[hereinafter Williams]. Dworkin is a particularly striking example
because the Wyoming Supreme Court attached a bibliography of articles
on independent state constitutional development as an appendix to the
opinion. 839 P.2d at 920–22.
In light of the availability of state constitutional claims and the
complete lack of any strategic reason not to pursue them, a number of
state court judicial opinions indicate the failure to bring a state
constitutional claim may amount to malpractice. See State v. Lowry, 667
P.2d 996, 1013 (Or. 1983) (Jones, J., concurring) (“Any defense lawyer
who fails to raise an Oregon Constitution violation and relies solely on
parallel provisions under the federal constitution . . . should be guilty of
legal malpractice.”); Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa.
Super. Ct. 1998) (finding counsel ineffective for failure to raise state
search and seizure claim); Jewett, 500 A.2d at 235 (noting that legal
argument too often “consists of a litany of federal buzz words
memorialized like baseball cards”). As bluntly stated by Judge Jeffrey S.
Sutton of the United States Court of Appeals for the Sixth Circuit, “no
58
lawyer worth his or her salt can be a good advocate in today’s world
without appreciating the possibility—and value—of raising state and
federal [constitutional] claims in representing a client.” Jeffrey S. Sutton,
Why Teach—and Why Study—State Constitutional Law, 34 Okla. City U.
L. Rev. 165, 178 (2009) [hereinafter Sutton]; see also State Constitutions
in the Federal System at 70 (“Local practitioners have an obligation to
raise the issue that the state court can grant broader protection under
its own constitution[.]”). See generally 1 Friesen § 1.08, at 1–57 to 1–66
(suggesting a manner by which to raise and argue independent state
constitutional grounds).
Yet, as observed in an introduction to a conference on state
constitutional law developments almost thirty years ago, “[o]ld habits die
hard.” A. E. Dick Howard, Introduction: A Frequent Recurrence to
Fundamental Principles, in Developments in State Constitutional Law xi,
xxii (Bradley D. McGraw ed., 1985). According to the 1989 report of the
Advisory Commission on Intergovernmental Relations, “Even among
lawyers, state constitutional law is relatively unknown and little
practiced.” State Constitutions in the Federal System at 2.
In order to help remedy the situation, the Conference of Chief
Justices in 2010 passed a resolution urging all law schools to offer a
course in state constitutional law. Robert F. Williams, Why State
Constitutions Matter, 45 New Eng. L. Rev. 901, 909, 912 (2011)
(reproducing text of resolution as an appendix). The resolution stated,
among other things, that state constitutional “declarations of rights . . .
are often greater than federally guaranteed rights and liberties” and that
“being a competent and effective lawyer requires an understanding of
both the Federal Constitution and state constitutional law.” Id. at app.
59
An important feature of independent state constitutional law is
that it is not “liberal” or “conservative.” 13 Rather, state constitutional law
involves recognition of the independent nature of state constitutions and
the obligation of state courts in our federal system. See Barry Latzer,
Whose Federalism? Or, Why “Conservative” States Should Develop Their
State Constitutional Law, 61 Alb. L. Rev. 1399, 1403–10 (1998). See
generally Stanely Mosk, State Constitutionalism: Both Liberal and
Conservative, 63 Texas L. Rev. 1081 (1985). While labels are illusive—is
our evolving search and seizure jurisprudence, liberal, conservative, or
libertarian?—independent state constitutional analysis can yield
outcomes that might appeal to persons who regard themselves as
politically “conservative.” Certainly the result in Tonn favored the state
over criminal defendants. And, in the wake of the United States
Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, 125
S. Ct. 2655, 162 L. Ed. 2d 439 (2005), the Ohio Supreme Court, on
independent state grounds, provided greater protection to property rights
under the Ohio Constitution than were provided by the United States
Supreme Court. Norwood v. Horney, 853 N.E.2d 1115, 1123, 1128–42
13The New Judicial Federalism is often associated with a seminal law review
article written by Justice William Brennan in which Justice Brennan urged state courts
to provide more constitutional protections for individuals than was being provided by
the United States Supreme Court. See William J. Brennan, Jr., State Constitutions and
the Protections of Individual Rights, 90 Harv. L. Rev. 489 (1977). As pointed out by
Indiana Chief Justice Randall Shepard, however, scholars and judges were advocating
independent state constitutional development well before Justice Brennan’s argument
appeared. Randall T. Shepard, The Maturing Nature of State Constitution Jurisprudence,
30 Val. U. L. Rev. 421, 423–24 & n.9 (1996) (citing Vern Countryman, Why a State Bill
of Rights? 45 Wash. L. Rev. 454 (1970), Jerome B. Falk, Jr., Foreword: The State
Constitution: A More than “Adequate” Nonfederal Ground, 61 Cal. L. Rev. 273 (1973),
Robert Force, State “Bills of Rights”: A Case of Neglect and the Need for a Renaissance, 3
Val. U. L. Rev. 125 (1969), Project Report: Toward an Activist Role for State Bills of
Rights, 8 Harv. C.R.-C.L. L. Rev. 271 (1973), and Lawrence M. Newman, Note,
Rediscovering the California Declaration of Rights, 28 Hastings L.J. 481 (1974)).
60
(Ohio 2006). Additionally, the New Hampshire Supreme Court found
under its state equal protection clause that the right to enjoy property is
subject to intermediate scrutiny. Cmty. Res. for Justice, Inc. v. City of
Manchester, 917 A.2d 707, 717–21 (N.H. 2007); see also Timothy
Sandefur, Don’t Mess with Property Rights in Texas: How the State
Constitution Protects Property Owners in the Wake of Kelo, 41 Real Prop.
Prob. & Tr. J. 227, 228–30, 252 (2007) (arguing the Texas Constitution’s
public use clause provides more protection to property owners than the
United States Constitution).
The rebirth of state constitutional law has advanced constitutional
dialogue both horizontally and vertically within the federal system.
Consistent with Justice Louis Brandeis’s famous declaration that a state
in the federalist system amounts to a “laboratory” of democracy, see New
State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386–87, 76
L. Ed. 747, 771 (1932) (Brandeis, J., dissenting), the vibrancy of state
constitutional law has been a salutary development in promoting
horizontal federalism, or dialogue among the states. See Robert F.
Williams, State Constitutional Methodology in Search and Seizure Cases,
77 Miss. L.J. 225, 253 (2007) [hereinafter State Constitutional
Methodology]; see also Ronald K.L. Collins, Reliance on State
Constitutions: Some Random Thoughts, 54 Miss. L.J. 371, 409 (1984)
[hereinafter Collins]. Just as a state court exploring products liability in
the 1950s would certainly consult Justice Roger Traynor’s concurring
opinion in Escola v. Coca Cola Bottling Co., 150 P.2d 436, 461 (Cal. 1944)
(Traynor, J., concurring), state supreme courts consult the cases of other
states in developing their own state constitutional law. Collins, 54 Miss.
L.J. at 408. For example, in Tonn, we canvassed academic authorities,
dissenting federal authorities, and the law of other state supreme courts.
61
See 195 Iowa at 103–09, 191 N.W. at 534–36. Similarly, in Cline, Ochoa,
and Pals, we canvassed cases from other states to determine the best
result on search and seizure questions under the Iowa Constitution.
Pals, 805 N.W.2d at 775–77, 779; Ochoa, 792 N.W.2d at 283–84; Cline,
617 N.W.2d at 289–90. With computer-based legal research, state
supreme court justices and their clerks have ready access to recent state
constitutional analyses in other states that can serve as a springboard
for analysis. The cross-fertilization opportunities in the development of
state constitutional law has never been greater. See State Constitutional
Methodology, 77 Miss. L.J. at 253 (stating that “state courts are remiss”
if they do not use modern research methods to look at decisions of other
state courts).
The growth of independent state constitutional law also promotes
vertical federalism, or a constitutional dialogue between state and federal
courts regarding the proper interpretation of an open-textured
constitutional provision. See James A. Gardner, Interpreting State
Constitutions: A Jurisprudence of Function in a Federal System 100 (2005)
[hereinafter Gardner]. 14 In this regard, commentators have cited our
century old case of State v. Sheridan, 121 Iowa 164, 96 N.W. 730 (1903),
as a precursor to the adoption of the exclusionary rule by the United
States Supreme Court in Weeks. See, e.g., Joseph Blocker, Reverse
14According to Professor Gardner, state court rejection of United States Supreme
Court decisions under state constitutions can ultimately influence opinion on the
correctness of the Supreme Court decision, contribute to a state-level nationwide
consensus, sometimes considered by the United States Supreme Court, provide a check
on national power by prohibiting state and local governments from exercising power
granted to them under the United States Constitution, and curb harm to civil liberties
brought about by narrow United States Supreme Court rulings. This section of
Gardner’s book is a substantial reproduction of an article he published two years earlier
in the Georgetown Law Journal. See James A. Gardner, State Constitutional Rights as
Resistance to National Power, 91 Geo. L.J. 1003, 1032–54 (2003).
62
Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 372
n.255 (2011); Collins, 54 Miss. L.J. at 415; see also G. Alan Tarr,
Understanding State Constitutions 163 n.119 (1998) [hereinafter Tarr].
When the United States Supreme Court incorporated the exclusionary
rule against the states in Mapp, it noted a majority of states had already
adopted it. 367 U.S. at 651, 81 S. Ct. at 1689, 6 L. Ed. 2d at 1087–88.
State supreme court decisions have also impacted the permissible
scope of warrantless searches incident to lawful arrests in the
automobile context. In New York v. Belton, 453 U.S. 454, 460, 101 S. Ct.
2860, 2864, 69 L. Ed. 2d 768, 775 (1981), the United States Supreme
Court held law enforcement officers could conduct thorough vehicle
searches, incident to arrest, including inside closed containers. In the
aftermath, a number of state supreme courts rejected Belton’s reasoning
when interpreting parallel state constitutional provisions. See, e.g., State
v. Hernandez, 410 So. 2d 1381, 1384–85 & n.2 (La. 1982); State v.
Harnisch, 954 P.2d 1180, 1182–83 (Nev. 1998); State v. Pierce, 642 A.2d
947, 959–60 (N.J. 1994); State v. Rowell, 188 P.3d 95, 101 (N.M. 2008);
People v. Blasich, 541 N.E.2d 40, 44–45 (N.Y. 1989); Commonwealth v.
White, 669 A.2d 896, 902 (Pa. 1992); State v. Bauder, 924 A.2d 38, 46–
47 (Vt. 2007); State v. Stroud, 720 P.2d 436, 440–41 (Wash. 1986)
(plurality opinion), overruled on other grounds by State v. Valdez, 224
P.3d 751, 775–78 (Wash. 2009); Vasquez v. State, 990 P.2d 476, 488–89
(Wyo. 1999); see also Commonwealth v. Toole, 448 N.E.2d 1264, 1266–68
(Mass. 1983) (rejecting Belton based on state statute). These courts
demonstrated respect for the United States Supreme Court, but
nonetheless strongly disagreed with its reasoning. Ultimately, the United
States Supreme Court abandoned much of Belton, citing among other
things the developments in the states. See Arizona v. Gant, 556 U.S.
63322, 338, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485, 493 (2009). See
generally State v. Vance, 790 N.W.2d 775, 786–90 (Iowa 2010).
State high court rulings interpreting state constitutions have paved
the way for the United States Supreme Court in a number of other areas.
See generally Joseph Blocher, Reverse Incorporation of State
Constitutional Law, 84 S. Cal. L. Rev. 323, 371–85 (2011) (discussing the
influence of state constitutional law in criminal procedure, due process,
and Eight Amendment cases). For instance, the California Supreme
Court ruling regarding miscegenation in Perez v. Lippold, 198 P.2d 17(Cal. 1948), was a precursor to the United States Supreme Court
decision in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d
1010 (1967). William B. Rubenstein, The Myth of Superiority, 16 Const.
Comment. 599, 622 n.91 (1999). Similarly, the decision of the Georgia
Supreme Court under the Georgia Constitution to prohibit the
criminalization of same-sex sodomy in Powell v. State, 510 S.E.2d 18(Ga. 1998), contributed to the overruling of Bowers v. Hardwick, 478 U.S.
186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Lawrence v. Texas, 539
U.S. 558, 576, 123 S. Ct. 2472, 2483, 156 L. Ed. 2d 508, 524 (2003)
(specifically citing Powell as an example of a state court’s decision to
depart from Bowers under its state constitution). 15 See generally
Gardner at 100–03 (providing overview of the Georgia decision in Powell
and subsequent reaction). Further, the California Supreme Court in
People v. Wheeler, 583 P.2d 748, 761–62 (Cal. 1978), held the use of a
preemptory challenge to remove a juror based on the juror’s membership
in a particular racial, religious, or ethnic group violates the California
15Prior to Bowers v. Hardwick, we held that a criminal statute prohibiting
opposite-sex sodomy in private violated the federal right of privacy. See State v. Pilcher,
242 N.W.2d 348, 359 (Iowa 1976).
64
Constitution. This decision predated the same conclusion by the United
States Supreme Court under the United States Constitution in Batson v.
Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82–
83 (1986).
The dialogic nature of state constitutional law—both vertical and
horizontal—is highly desirable and should cause celebration, not
handwringing. See Jason Mazzone, The Bill of Rights in the Early State
Courts, 92 Minn. L. Rev. 1, 6 (2007) [hereinafter Mazzone] (stating that
“[a]llowing state courts to adopt more expansive readings of
constitutional rights generates information about how rights might be
structured” and that “[s]uch experimentation produces systemic
benefits”); Lawrence Gene Sager, Fair Measure: The Legal Status of
Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1251–52
(1978) (noting many reforms of the Warren court were already well-
established matters of state law in a number of states). The interactions
fostered by the rebirth of independent state constitutional law
demonstrate that the system of dual sovereignty is now functioning more
closely to the federalist ideal.
B. Independent Iowa State Constitutional Law After
Incorporation. After incorporation, the first requirement, of course, was
to ensure that Iowa law provided the floor of protection offered by the
United States Constitution in criminal procedure, including the Fourth
Amendment. Immediately following incorporation, we primarily adjusted
to the incorporation revolution under the Warren Court and our caselaw
under the Iowa Constitution tended to run parallel to the evolving federal
caselaw. See Ochoa, 792 N.W.2d at 265–66 (discussing older Iowa
cases).
65
As the United States Supreme Court began to scale back on
substantive holdings under the Bill of Rights of the United States
Constitution, we on a number of occasions took a different path under
our state constitution. We have applied independent Iowa state
constitutional law in the areas of equal protection, see, e.g., Varnum v.
Brien, 763 N.W.2d 862, 896 (Iowa 2009); Racing Ass’n of Cent. Iowa v.
Fitzgerald (RACI), 675 N.W.2d 1, 7 (Iowa 2004); Bierkamp v. Rogers, 293
N.W.2d 577, 579 (Iowa 1980), cruel and unusual punishment, see State
v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009), due process, see State v.
Cox, 781 N.W.2d 757, 761 (2010); Callender v. Skiles, 591 N.W.2d 182,
187, 189 (Iowa 1999), and search and seizure, see Pals, 805 N.W.2d at
782; Ochoa, 792 N.W.2d at 267; State v. Tague, 676 N.W.2d 197, 204,
206 (Iowa 2004); Cline, 617 N.W.2d at 284–85; State v. Cullison, 173
N.W.2d 533, 538–39 (Iowa 1970).
Of course, we are free to follow persuasive United States Supreme
Court precedent in the interpretation of state constitutional provisions.
For example, in State v. Breuer, 808 N.W.2d 195, 201–03 (Iowa 2012), we
followed persuasive federal precedent and declined to require that a
search warrant be physically present in a hospital room before police
may obtain a blood draw from a person suspected of driving while
intoxicated. Even where we have declined to take a different path under
the Iowa Constitution, however, we have respectively emphasized that we
jealously guard our right to do so. See, e.g., State v. Becker, 818 N.W.2d
135, 149 (Iowa 2012); State v. Kurth, 813 N.W.2d 270, 283 (Iowa 2012)
(Appel, J., concurring specially); Hensler v. City of Davenport, 790 N.W.2d
569, 579 n.1 (Iowa 2010); Zaber v. City of Dubuque, 789 N.W.2d 634, 654
(Iowa 2010); Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 480 (Iowa 2010);
State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008); In re Det. of
66
Hennings, 744 N.W.2d 333, 337 (Iowa 2008); State v. Hoskins, 711
N.W.2d 720, 725 (Iowa 2006); State v. Beckett, 532 N.W.2d 751, 755
(1995); State v. Groff, 323 N.W.2d 204, 207–08 (Iowa 1982); State v.
Olsen, 293 N.W.2d 216, 219–20 (Iowa 1980).
One of the questions we have faced in developing our independent
state constitutional law was whether an opinion of the United States
Supreme Court under the provision of the United States Constitution
was entitled to a “presumption of correctness” in the interpretation of a
parallel or similar provision of the Iowa Constitution. In Ochoa, we
declared, among other things, that there is no presumption that the
federal law is the correct approach. 792 N.W.2d at 267. We came to the
same conclusion as Oregon Supreme Court Justice Hans Linde, who
three decades ago described a state court’s blind adoption of federal
constitutional doctrine when interpreting its state constitution as a “non
sequitur that the United States Supreme Court’s decisions under such a
text not only deserve respect but presumptively fix its correct meaning
also in state constitutions.” State v. Kennedy, 666 P.2d 1316, 1322 (Or.
1983). Our view also aligned with leading commentators. As noted by
Professor Robert F. Williams, the premise that United States Supreme
Court interpretations of the Bill for Rights of the United States
Constitution are presumptively correct for interpreting analogous
provisions of state constitutions is “simply wrong.” Williams at 135; see
also Dorothy T. Beasley, The Georgia Bill Of Rights: Dead or Alive, 34
Emory L.J. 343, 414 (1985) (“The virtual piggybacking of the state clause
onto the federal clause renders the former a parasite instead of an
independent source of authority.”). According to Professor Williams, a
state court interpreting its state constitution should give less weight to
United States Supreme Court decisions than the decisions of other states
67
interpreting similar provisions because “federalism and other
institutional concerns, either explicitly or implicitly, pervade Supreme
Court decisions declining to recognize rights against states.” Williams at
137. Williams accordingly discounts these decisions because of the
possibility of underenforcement of the Bill of Rights of the United States
Constitution. Id. Otherwise, as indicated by Justice David Souter, then
of the New Hampshire Supreme Court, state courts would be reduced to
“a mere row of shadows.” State v. Bradberry, 522 A.2d 1380, 1389 (N.H.
1986) (Souter, J., concurring specially).
To date, we have yet to adopt the primacy approach to state
constitutional law. Under the primacy approach, a state supreme court
addresses state constitutional issues before moving to issues under the
Federal Constitution. See, e.g., State v. Cadman, 476 A.2d 1148, 1150
(Me. 1984); State v. Weeks, 635 A.2d 439, 445–46 (N.H. 1993), abrogated
on other grounds by State v. Knickerbocker, 880 A.2d 419, 423 (N.H.
2005); Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981). 16 The primacy
approach has the desirable feature of avoiding unnecessary federal
constitutional adjudications and in obtaining finality. Jerome B. Falk,
Jr., Foreword: The State Constitution: A More than “Adequate” Nonfederal
Ground, 61 Cal. L. Rev. 273, 286 (1973); see also State Constitutions in
the Federal System at 70 (characterizing primacy approach as “useful”
because it avoids unnecessary federal adjudications, allows state courts
to decide questions of state law, takes pressure off the United States
Supreme Court, promotes consideration of the character of a state, and
promotes state experimentation). Though only adopted by a few courts,
16Theleading advocate of this approach was Justice Hans Linde of the Oregon
Supreme Court. See Hans A. Linde, Without “Due Process”: Unconstitutional Law in
Oregon, 49 Or. L. Rev. 125, 133–35 (1970) [hereinafter Linde].
68
and then perhaps honored in the breach more than followed, 17 the
primacy approach has had the support of Justice Linde 18 as well as
United States Supreme Court Justice John Paul Stevens. 19 As noted by
Justice Stevens:
The emerging preference for state constitutional bases of
decision in lieu of federal ones is, in my view, the analytic
approach best suited to facilitating the independent role of
state constitutions and state courts in our federal system.
Delaware v. Van Arsdall, 475 U.S. 673, 705, 106 S. Ct. 1431, 1448–49,
89 L. Ed. 2d 674, 699 (1986) (Stevens, J., dissenting).
Instead, we have adopted a more measured approach under which
we are free to consider either state or federal constitutional provisions
first. For instance, in Cox and Tague, we elected to address the state
constitutional issues involving due process and search and seizure first,
leaving the federal constitutional issues undecided. Cox, 781 N.W.2d at
772; Tague, 676 N.W.2d at 206. On the other hand, in Mitchell County v.
Zimmerman, 810 N.W.2d 1, 18 (Iowa 2012), and Kurth, 813 N.W.2d at
281, we addressed federal constitutional issues in a cases involving
religious liberty and search and seizure, respectively, and reserved state
constitutional questions. By exercising our discretion regarding which
17See John W. Shaw, Comment, Principled Interpretations of State Constitutional
Law—Why Don’t the “Primacy” States Practice What They Preach?, 54 U. Pitt. L. Rev.
1019, 1034–49 (1993) (noting, following analysis of Oregon cases, that the Oregon
Supreme Court often departs from the primacy approach and offering explanations).
18See Linde, 49 Or. L. Rev. at 135.
19See Brigham City v. Stuart, 547 U.S. 398, 407–08, 126 S. Ct. 1943, 1950, 164
L. Ed. 2d 650, 660 (2006) (Stevens, J., concurring); Delaware v. Van Arsdall, 475 U.S.
673, 705, 106 S. Ct. 1431, 1448–49, 89 L. Ed. 2d 674, 699 (1986) (Stevens, J.,
dissenting); Massachusetts v. Upton, 466 U.S. 727, 736–37, 104 S. Ct. 2085, 2089–90
80 L. Ed. 2d 721, 729–30 (1984) (Stevens, J., concurring).
69
claim to address first, we can choose the clearest path to the resolution
of a case.
Our approach to independent state constitutional law in the search
and seizure area has been cautious. We have required that state
constitutional grounds must be properly before the court, sometimes
strictly enforcing our preservation rules. For example, in State v. Lowe,
812 N.W.2d 554, 577 (Iowa 2012), the majority of this court declined to
consider whether we should adopt a Johnson v. Zerbst-type knowing and
voluntary requirement for a consent search under article I, section 8 of
the Iowa Constitution because the parties did not specifically raise the
argument. When a party argues from federal caselaw but does not assert
a different substantive standard under the Iowa Constitution, we
ordinarily decline to develop a new standard, but reserve the power to
apply the federal standard in a manner different from federal caselaw.
See, e.g., Bruegger, 773 N.W.2d at 883; RACI, 675 N.W.2d at 6–7. The
distinction between a standard and its application is especially important
where the legal principles have high degrees of generality, such as
“totality of circumstances” tests, tests based upon “gross
proportionality,” and tests based upon “reasonableness.” See Williams at
169–71; Jeffrey Sutton, What Does—and Does Not—Ail State
Constitutional Law, 59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter
Sutton].
In part because of our relatively stringent preservation rules, the
Iowa caselaw in the area of search and seizure involving independent
state grounds has been modest. In Cline, we joined a minority of state
jurisdictions rejecting the “good faith” exception to the exclusionary rule
announced by the United States Supreme Court in Leon. Cline, 617
N.W.2d at 293. In Tague, we held that an isolated incident of crossing
70
the centerline did not provide probable cause or reasonable suspicion for
a traffic stop under article I, section 8 of the Iowa Constitution. 676
N.W.2d at 206. We have also rejected the sweeping notion of Samson v.
California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), that
general searches of parolees may be conducted without any showing of
particularity. See Ochoa, 792 N.W.2d at 291. We have insisted on a
more realistic analysis of what amounts to “voluntary consent” in the
context of automobile searches. Pals, 805 N.W.2d 782–83.
Each of our independent search and seizure cases has been
narrowly crafted, reflecting a cautious approach to the development of
our state constitutional law. Our independent search and seizure cases
emphasize the traditional requirement of particularity to cabin
government discretion in the search and seizure context and engage in
realistic assessment of the voluntariness of consent. These two themes
merge to remind law enforcement of the wisdom in the jurisprudence of
United States Supreme Court Justice Potter Stewart: when in doubt, get
a warrant. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408,
2412, 57 L. Ed. 2d 290, 298–99 (1978) (reminding us that “it is a
cardinal principal that ‘searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions’ ” (quoting Katz v. United
States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585
(1967) (footnotes omitted))). In short, we have sought to develop an Iowa
search and seizure jurisprudence that prevents arbitrary exercise of
government power in a realistic way in today’s world.
C. Challenges to Independent State Constitutional Law by
Constitutional Nationalists.
71
1. Introduction. During the past forty years, “constitutional
nationalists” 20 have challenged the development of independent state
constitutional law. Writing in 1998, a leading commentator declared that
the concerns of constitutional nationalists had “largely been put to rest.”
Tarr at 169. While the paths pursued below have been well traveled by
courts and commentators, some of the objections of the constitutional
nationalists to a robust federalist system with vibrant independent state
constitutional law should be put to rest.
2. Parallel language. Constitutional nationalists sometimes
suggest that because the Fourth Amendment text and the text of the
search and seizure provisions of state constitutions, like article I, section
8 of the Iowa Constitution, are nearly identical, state courts must follow
the interpretive decisions of the United States Supreme Court. We have
previously addressed and rejected this argument. See, e.g., Ochoa, 792
N.W.2d at 267; Tonn, 195 Iowa at 104–07, 191 N.W. at 535–36.
The Tonn–Ochoa notion that parallel language in a state
constitution is not tied to United States Supreme Court interpretations
was recently powerfully endorsed by Judge Sutton:
There is no reason to think, as an interpretive matter, that
constitutional guarantees of independent sovereigns, even
guarantees with the same or similar words, must be
construed the same. Still less is there reason to think that a
highly generalized guarantee, such as prohibition on
“unreasonable” searches, would have just one meaning for a
range of differently situated sovereigns.
Sutton, 59 U. Kan. L. Rev. at 707. Many state courts reflect Judge
Sutton’s approach. See, e.g., State v. Gerschoffer, 763 N.E.2d 960, 965
20“Constitutional nationalists” are those who object to citation to foreign law.
Daniel A. Farber, The Supreme Court, the Law of Nations, and Citations of Foreign Law:
The Lessons of History, 95 Cal. L. Rev. 1335, 1342 (2007).
72
(Ind. 2002) (noting that Indiana Constitution “has unique vitality, even
where its words parallel federal language”); People v. Barber, 46 N.E.2d
329, 331 (N.Y. 1943) (noting that New York Court of Appeals is “bound to
exercise its independent judgment and is not bound by a decision of the
Supreme Court of the United States limiting the scope of similar
guarantees in the Constitution of the United States”); State v. Arrington,
319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the
Constitution of North Carolina, this Court is not bound by opinions of
the Supreme Court of the United States construing even identical
provisions in the Constitution of the United States.”); Commonwealth v.
Edmunds, 586 A.2d 887, 895–96 (Pa. 1991) (“Although the wording of the
Pennsylvania Constitution is similar in language to the Fourth
Amendment of the United States Constitution, we are not bound to
interpret the two provisions as if they were mirror images, even where the
text is similar or identical.”); O’Boyle v. State, 117 P.3d 401, 408 (Wyo.
2005) (search and seizure provision of Wyoming Constitution, which
parallels the Fourth Amendment, provides “a separate and independent
source of protection of the rights of Wyoming citizens”).
The notion that state supreme courts should simply mirror the
interpretations of the United States Supreme Court in interpreting
parallel provisions of state constitutions is a flawed method of judging.
This technique amounts to what Professor Adrian Vermeule refers to as
“a precommitment device” that prevents a state supreme court from
considering each case based on an independent examination of facts and
law. See Adrian Vermeule, The Judicial Power in the State (and Federal)
Courts, 2000 Sup. Ct. Rev. 357, 366 (2000); see also Williams at 226.
As a result, lockstepping state law to federal precedents is not a
humble or minimalist approach, but is an aggressive and maximalist
73
approach to the law. Williams at 224–29. 21 Through the imposition of
lockstep, constitutional nationalists seek not only to provide the rule of
decision in a particular case, but in literally hundreds of cases in one
master stroke. Lockstepping is the antithesis of the ordinary judicial
method, which grinds more slowly and finely, decides what needs to be
decided and no more, reserving future legal questions for the next case.
As noted by two scholars, “Judicial federalism offers the opportunity to
weigh alternatives over time, to keep an open mind, to reflect, and to
develop visions of the good, without rushing headlong into the
straitjacket of national policy.” Michael E. Solimine & James L. Walker,
Respecting State Courts: The Inevitability of Judicial Federalism 138
(1999) [hereinafter Solimine & Walker].
3. Uniformity. The development of independent state
constitutional law is sometimes challenged on the pragmatic ground that
it tends to defeat the development of uniform standards that apply under
both the Federal and State Constitutions. The decision against
uniformity, however, was made by the framers of the United States
Constitution and the Iowa Constitution in favor of dual sovereignty. We
have no authority to alter it. See, e.g., State v. Smith, 814 P.2d 652, 661
(Wash. 1991) (Utter, J., concurring) (noting that lockstepping would
require rewrite of state constitution). We cannot add a proviso to the
Tenth Amendment that declares, “State courts should defer to federal
court interpretations of Bill of Rights provisions,” nor can we add a
provision to article I, section 8 of the Iowa Constitution declaring, in the
21This section of Williams’s book consists of a substantial reproduction of an
article he published in the William and Mary Law Review. See Robert F. Williams, State
Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or
Prospective Lockstepping, 46 Wm. & Mary L. Rev. 1499, 1520–27 (2005).
74
interest of uniformity, that we will decline to exercise our independent
authority to interpret the state constitution. 22 Demands for a uniform
approach undermine the “double security” that Madison proclaimed the
states provided in the federal framework. See Duncan, 391 U.S. at 173,
88 S. Ct. at 1461, 20 L. Ed. 2d at 509–10 (Harlan, J., dissenting)
(federalism protects “the security of liberty in America . . . [through] the
dispersion of governmental power across a federal system”); see also
State v. von Bulow, 475 A.2d 995, 1019 (R.I. 1984) (finding search
without a warrant unlawful and commenting that state and federal
constitutions provide a “double barrelled source of protection” (citation
and internal quotation marks omitted)); 1 Friesen § 1.03[4][a], at 1–14 to
1–15 (noting that independent state constitutional analyses lead to “a net
gain in liberty,” that uniformity deprives states of sovereignty and local
control, and that uniformity is illusory because it is impossible for the
United States Supreme Court to review every case applying federal
constitutional law); Stanley G. Feldman & David L. Abney, The Double
Security of Federalism: Protecting Individual Liberty Under the Arizona
Constitution, 20 Ariz. St. L.J. 115, 117 (1988) (“If we choose to follow
federal precedent to bolster nationwide conformity, we destroy the
‘double security’ designed to protect our citizens.”); Mazzone, 92 Minn. L.
Rev. at 5–6, 74 (arguing consolidation of constitutional law is
“inconsistent with federalism” because “federalism works best when
different political unitys are able to try different approaches and solve
problems in different ways”).
22See Tarr at 181 (stating that in a system of dual sovereignty, state courts
cannot legitimately delegate responsibility to interpret state constitutional provisions to
the United States Supreme Court).
75
Indeed, the United States Supreme Court has held that the United
States Constitution prohibits the federal government from
commandeering a state legislature or a state executive and making them
foot soldiers in the creation and enforcement of federal law. See, e.g.,
Printz v. United States, 521 U.S. 898, 935, 117 S. Ct. 2365, 2384, 138 L.
Ed. 2d 914, 944 (1997) (invalidating provisions of Brady Handgun
Violence Prevention Act because United States Constitution prohibits
requiring state executive officials from enforcing federal law); New York v.
United States, 505 U.S. 144, 180–83, 112 S. Ct. 2408, 2430–32, 120 L.
Ed. 2d 120, 153–55 (1992) (invalidating environmental law provision that
commandeered state legislature); see also Mazzone, 92 Minn. L. Rev. at
75–76 (arguing consolidation of constitutional law fails to respect the
importance placed upon state courts by the United States Constitution).
Similarly, state courts cannot become stone breakers pursuant to some
kind of self-imposed corvée duty that requires federal precedent to be
used as hammers to break state constitutional rock.
Further, even on a pragmatic level, the case for uniformity is
unpersuasive. First, it would defeat the positive features of the federalist
system which was so important to the founding generation. As one
commentator has noted:
Rules that govern relations between police officers and local
citizens, or between cities and school boards and their
employees, are not necessarily better decided, or more
efficiently decided, by nine judicial appointees with a
national responsibility and allegiance. Insisting on a
national, uniform legal culture ignores the reality and
richness of state differences.
1 Friesen § 1.03[4][a], at 1–14 to 1–15 (footnote omitted).
The position of state supreme court justices closer to daily law
enforcement activities has not been lost on the United States Supreme
76
Court. For instance, Justice Ginsberg has noted that state courts have a
“unique vantage point” in automobile stop cases. See Ohio v. Robinette,
519 U.S. 33, 40, 117 S. Ct. 417, 422, 136 L. Ed. 2d 347, 355 (1996)
(Ginsburg, J., concurring).
Moreover, it is clear that uniformity will not be achieved by
adopting United States Supreme Court precedents under the state
constitution. See 1 Friesen § 1.03[4][a], at 1–15. The Supreme Court is
capable of handling only a few search and seizure cases each year. As a
result, there are many issues dividing the federal circuits that remain
undecided. A recent survey of search and seizure precedents in the
federal circuits reveal over three dozen current splits that have not been
mediated by the United States Supreme Court. See Wayne A. Logan,
Constitutional Cacophony: Federal Circuit Splits and the Fourth
Amendment, 65 Vand. L. Rev. 1137, 1147–60 (2012); see also John
Harrison, Federal Appellate Jurisdiction Over Questions of State Law in
State Courts, 7 Green Bag 2d 353, 356 (2004) (noting that “[f]ederal law
is notoriously non-uniform among the different circuits”); Mazzone, 92
Minn. L. Rev. at 74–75 (warning not to overvalue uniformity because “our
legal system tolerates a good deal of inconsistency and nonuniform
outcomes”); Michael E. Solimine, The Future of Parity, 46 Wm. & Mary L.
Rev. 1457, 1483 (2004) (explaining that “[e]ven narrowly focused federal
rights often have nonuniform application”).
In addition, past cases demonstrate that it is difficult to determine
the methodology that the United States Supreme Court will apply to
determine a search and seizure issue. In recent years, the Supreme
Court has applied at least five different analytical models, based upon
the warrant requirement, individualized suspicion, case-by-case analysis,
a balancing test, and an approach relying on the common law plus
77
balancing to resolve search and seizure issues. See Thomas K. Clancy,
The Fourth Amendment: Its History and Interpretation 470–531 (2008)
[hereinafter Clancy]. In any given case, it is impossible to predict which
model will apply.
As a result, even if uniformity were the goal, a policy of blind
adoptionism may cause more harm than it is worth. As noted recently
by the Tennessee Supreme Court, “[state] constitutional standards are
not destined to walk in lock step with the uncertain and fluctuating
federal standards and do not relegate [state] citizens to the lowest levels
of constitutional protection, those guaranteed by the national
constitution.” Planned Parenthood of Middle Tenn. v. Sundquist, 38
S.W.3d 1, 14–15 (Tenn. 2000) (citation and internal quotation marks
omitted).
Another pragmatic ground offered in support of uniformity is that
law enforcement will be too confused by independent state constitutional
law. This argument is flawed. As has been repeatedly pointed out, there
are not two standards for state law enforcement officials when a state
supreme court develops its independent state law in criminal procedure.
Law enforcement officials need not learn two different standards; they
need only learn one, namely, whatever standard is most restrictive. See
1 Friesen § 1.03[4][b], at 1–15 to 1–16; Tarr at 181 n.32. Given the
professionalism and training of Iowa law enforcement, we should not sell
their abilities so short. Iowa law enforcement is not inferior in ability to
its counterparts in New York, New Jersey, Wisconsin, Oregon, Georgia,
Minnesota, Indiana, and the many other states that have embraced
robust independent state constitutional law.
Finally, uniformity converts a state supreme court into a legal
chameleon that changes color with the latest changes in the
78
jurisprudence of the United States Supreme Court. Do we retire the
writings of Justices Brandeis, Holmes, Cardozo, Stone, and Jackson
because their views are no longer cited by current majorities of the
United States Supreme Court? And what about the Iowa legal tradition
and culture as reflected in In re Ralph and its progeny? As former Chief
Justice of Indiana Randall Shepard noted:
[W]hat respectable alternative is there to independent state
constitutional jurisprudence? Is it a nation where civil
liberties at all levels of activity depend solely on whether the
left, the center, or the right of the U.S. Supreme Court is
ascendant at the moment? Is it a country where state courts
hearing ninety percent of the litigation resolve the most
important cases without regard to their own history or
precedent? Surely not.
Randall T. Shepard, The Maturing Nature of State Constitution
Jurisprudence, 30 Val. U. L. Rev. 421, 456 (1996). Under the uniformity
theory, the Iowa Supreme Court would morph into a Twelfth United
States Circuit Court of Appeals.
4. Deference to United States Supreme Court Justices. The
deference notion is contrary to a number of threads of constitutional
development. The abandonment of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10
L. Ed. 865 (1842), for the rule in Erie Railroad Co. v. Tompkins, 304 U.S.
64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), tended to remove federal judges
from interpretation of state law. Further, as indicated in Stone v. Powell,
428 U.S. 465, 493 n.35, 96 S. Ct. 3037, 3052 n.35, 49 L. Ed. 2d 1067,
1087 n.35 (1976), and its progeny, the United States Supreme Court has
confidence in the ability of the state courts to handle federal
constitutional claims. The discovery that state courts are now disabled
from independently considering state constitutional claims because of
their alleged lack of quality cuts against these important trends in federal
law.
79
In any event, the notion that members of the United States
Supreme Court have some kind of superior wisdom that we must show
deference to when interpreting provisions of the Iowa Constitution is
doubtful at best. History shows otherwise. Most of us would prefer the
decisions of Iowa judges in In re Ralph to the work of the United States
Supreme Court in Dred Scott and the generous Iowa approaches in Clark
and Coger to the narrow approach in Plessy. Cases like Korematsu v.
United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and
Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137(1951), do not inspire our confidence. See Louis Henkin, Revolutions and
Constitutions, 49 La. L. Rev. 1023, 1042–43 & n.28 (1989). Indeed, it
has been suggested that through most of our history, federal courts have
come up short in the protection of basic American rights. Solimine &
Walker at 28.
Further, extraordinary state court judges with outstanding
reputations have helped to develop what is now a substantial body of
independent state constitutional law. Among others, distinguished state
judges such as Shirley Abrahamson of Wisconsin, Christine Durham of
Utah, Thomas Hayes of Vermont, Judith Kaye of New York, Hans Linde
of Oregon, Stanley Mosk of California, Ellen Peters of Connecticut,
Stewart Pollock of New Jersey, Randall Shepard of Indiana, Marsha
Ternus of Iowa, and Robert Utter of Washington have enriched the legal
culture in their states and across the nation. 23 There is no basis to
23Many of these state court judges have published thoughtful scholarly articles
on independent state constitutional law. See, e.g., Shirley S. Abrahamson, Divided We
Stand: State Constitutions in a More Perfect Union, 18 Hastings Const. L.Q. 723 (1991);
Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State
Constitutional Law, 63 Tex. L. Rev. 1141 (1985); Shirley S. Abrahamson, Reincarnation
of State Courts, 36 Sw. L.J. 951 (1982); Judith S. Kaye, Contributions of State
Constitutional Law to the Third Century of American Federalism, 13 Vt. L. Rev. 49 (1988);
80
discount the work of these outstanding state supreme court justices. Is
there any reason to believe that Justices Holmes, Cardozo, O’Connor,
and Souter were less intelligent or less capable when they served on state
supreme courts? As noted by two observers, “Considering the judicial
systems as a whole, we believe it is demeaning and inaccurate to assert a
lack of talent in the state and local judicial arena.” Solimine & Walker at
132.
In fact, there is reason to believe that in some respects, state
supreme court justices may be better positioned than United States
Supreme Court Justices to decide questions of state constitutional law.
As noted above, state judges are not affected by federalism concerns and
will not face pressures to underenforce constitutional norms. Further, as
Justice Abrahamson pointed out, criminal law is an area of traditional
expertise for state court judges. Abrahamson, 63 Tex. L. Rev. at 1148–
49. Justice Ginsberg made a similar point in Robinette, noting that state
courts have a “unique vantage point” in assessing the constitutional
dimensions of traffic stops. 519 U.S. at 40, 117 S. Ct. at 422, 136 L. Ed.
2d at 355.
___________________
Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John’s L. Rev.
399 (1987); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L.
Rev. 165 (1984); Hans A. Linde, First Things First: Rediscovering the States’ Bills of
Rights, 9 U. Balt. L. Rev. 379 (1980); Stanley Mosk, State Constitutionalism: Both Liberal
and Conservative, 63 Tex. L. Rev. 1081 (1985); Stewart G. Pollock, Adequate and
Independent State Grounds as a Means of Balancing the Relationship Between State and
Federal Courts, 63 Tex. L. Rev. 977 (1985); Stewart G. Pollock, State Constitutions as
Separate Sources of Fundamental Rights, 35 Rutgers L. Rev. 707 (1983); Randall T.
Shepard, The Maturing Nature of State Constitution Jurisprudence, 30 Val. U. L. Rev. 421
(1996); Marsha Ternus, Remarks: Symposium, Great Women, Great Chiefs, 74 Alb. L.
Rev. 1569 (2011); Robert F. Utter, The Practice of Principled Decision-making in State
Constitutionalism: Washington’s Experience, 65 Temp. L. Rev. 1153 (1992); Robert F.
Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal
Constitutional Issues When Disposing of Cases on State Constitutional Grounds, 63 Tex.
L. Rev. 1025 (1985).
81
In any event, what is required in constitutional adjudication is not
brilliance, but judgment. As Justice Holmes said long ago when serving
on the Supreme Judicial Court of Massachusetts, “[I]t is vain to suppose
that solutions can be attained merely by logic and general propositions of
law which nobody disputes.” Vegelahn v. Guntner, 44 N.E. 1077, 1080,
(Mass. 1896) (Holmes, J., dissenting). Phrased somewhat differently,
“The life of the law has not been logic, it has been experience.” Oliver
Wendell Holmes, The Common Law 1 (1881).
Notwithstanding the above, no one could claim that state court
judges in Iowa or in other states are perfect. Justice Linde observed that
“most state courts had a poor record of taking seriously the individual
rights and fair procedures promised in their states’ bills of rights.”
Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18
Ga. L. Rev. 165, 174 (1984). To the extent there are shortcomings,
however, the solution, as Professor Paul Bator pointed out over thirty
years ago, is to “create conditions to assure optimal performance by the
state courts.” Paul M. Bator, The State Courts and Federal Constitutional
Litigation, 22 Wm. & Mary L. Rev. 605, 624 (1981).
5. Efficiency. Although it is rarely publically advanced as a reason
for not engaging in independent state constitutional analysis, simply
adopting the results of federal cases might be defended as more efficient
for courts and judges. Developing a meaningful independent state
constitutional analysis is hard work. Ken Gormley, Significant
Developments in State Constitutional Law, 1988, 2 Emerging Issues St.
Const. L. 1, 2 (1989). It would be easier to simply match our
constitutional cases against federal precedents, briefly state our
conclusion, and call it a day.
82
The problem with this approach, however, is that it ignores our
obligation to construe our independent state constitution. Efficiency was
not a goal of the framers of either the United States or Iowa
Constitutions, and it should not be ours, either. If efficiency were the
constitutional goal, there would be no bicameral legislature, no
separation of powers, federalism would be replaced by a unified national
state, and there would, of course, be no state courts. Instead, we must
do the job assigned to us in our constitutional system as justices of the
Supreme Court of Iowa, challenging as it may be,24 and decide each and
every independent constitutional claim we confront based on Iowa law
and the peculiar facts.
6. Summary. State supreme court justices have a constitutional
responsibility to do the very best job we can, in each and every case, and
to decide state constitutional issues based on law, facts, and the best
constitutional wisdom we can collectively muster. Arguments marshaled
against independent state constitutional grounds such as claims that
parallel language demands uniform outcomes ignores the open-textured
qualities of most constitutional provisions. Claims that cases under
State and Federal Constitutions should come to uniform results runs
24Of course, the ability to engage in thoughtful, independent analysis of state
constitutional issues is threatened when the docket of a state supreme court is
unmanageable. As Robert Williams has pointed out, the creation of intermediate courts
of appeal in many states has alleviated the workload on state supreme courts and
allows for more considered development of the state’s constitutional law. See Robert F.
Williams, Introduction: Celebrating Judge Michael Patrick King’s Career, 35 Rutgers L.J.
xi, xi–xii (2004). It is undeniable, however, that most state supreme courts do not have
the same resources available to it as the United States Supreme Court. The United
States Supreme Court decides approximately seventy cases in a nine-month term, with
each justice receiving the assistance of four law clerks. In Iowa, we have a somewhat
larger caseload and only one law clerk per justice. Nonetheless, with the creation of the
Iowa Court of Appeals and the advent of computerized research, our practical ability to
meet our Iowa constitutional responsibilities and develop state constitutional law is
much enhanced over prior decades.
83
directly counter to the Tenth Amendment and Madisonian concepts of
the states providing a “double security” for liberty. In interpreting state
constitutional law, state supreme court justices are not pins standing at
attention ready to explode when the next divided opinion of the United
States Supreme Court rolls down the constitutional alley. Instead, state
supreme court justices have a solemn duty to independently determine
the meaning and scope of our state constitutional provisions.
D. Challenges to Independent State Constitutional Law in the
Context of Search and Seizure. From the beginning, the efforts of the
United States Supreme Court to interpret the open-textured provisions of
the Fourth Amendment have been fraught with difficulty. The
relationship between the two Fourth Amendment clauses, the warrant
clause and the reasonableness clause, is not clear. Further, the term
“reasonable” is subject, then as now, to many different meanings. See
Clancy at 11; Silas J. Wasserstrom, The Fourth Amendment’s Two
Clauses, 26 Am. Crim. L. Rev. 1389, 1389–99 (1989).
Interpretation of the Fourth Amendment has been further
complicated by technological change. Trespass doctrine developed by the
United States Supreme Court in Olmstead v. United States, 277 U.S. 438,
48 S. Ct. 564, 72 L. Ed. 944 (1928), was challenged by the advent of the
telephone and was ultimately largely supplanted by an expectation-of-
privacy approach. See Katz, 389 U.S. at 353, 88 S. Ct. at 512, 19
L. Ed. 2d at 583; id. at 360, 88 S. Ct. at 516, 19 L. Ed. 2d at 587
(Harlan, J., concurring). Now the expectation of privacy approach is
being challenged by the Internet and cell phone technology and may be
in the process of being replaced by concepts of autonomy. See United
States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945, 949, 952, 181 L. Ed.
2d 911, 918 (2012).
84
In addition to the difficulties posed by the language and structure
of the Fourth Amendment and technology change, there has been a
striking lack of stable consensus on the proper application of Fourth
Amendment law among the Justices. The Court’s jurisprudence in the
search and seizure area has been characterized by distinguished
commentators as “not merely complex and contradictory, but often
perverse”; 25 as “a mass of contradictions and obscurities”; 26 as involving
cases decided within weeks of each other that are “irreconcilable”; 27 as
involving an expectation of privacy test that “remains remarkably
opaque”; 28 as being “in a state of theoretical chaos”; 29 as maintaining
“doctrinal incoherence of Fourth Amendment law” that “disturbs many
judges and scholars”; 30 as including “inconsistent and bizarre results”;31
as being “distressingly unmanageable”; 32 as being “illogical and
25Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757,
758 (1994).
26Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468,
1468 (1985).
27Thomas K. Clancy, The Fourth Amendment’s Concept of Reasonableness, 2004
Utah L. Rev. 977, 978 (2004).
28Oren S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev.
503, 504–05 (2007).
29Donald R.C. Pongrace, Stereotypification of the Fourth Amendment’s
Public/Private Distinction: An Opportunity for Clarity, 34 Am. U. L. Rev. 1191, 1208
(1985).
30David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U.
Pa. J. Const. L. 581, 581 (2008).
31Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as
Constitutional Theory, 77 Geo. L.J. 19, 29 (1988).
32Richard G. Wilkins, Defining the “Reasonable Expectation of Privacy”: An
Emerging Tripartite Analysis, 40 Vand. L. Rev. 1077, 1107 (1987).
85
unwieldy”; 33 and as involving, with each case, “more duct tape on the
Amendment’s frame and a step closer to the junkyard.” 34
The problems in its Fourth Amendment cases have been
recognized by the Justices of the United States Supreme Court for
several decades. See Gant, 556 U.S. at 349, 129 S. Ct. at 1723, 173
L. Ed. 2d at 500 (noting the “checkered history of search-incident-to-
arrest exception); Acevedo, 500 U.S. at 583, 111 S. Ct. at 1993, 114
L. Ed. 2d at 636 (Scalia, J., concurring) (referring to Fourth Amendment
jurisprudence as “an inconsistent jurisprudence that has been with us
for years”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 637, 109
S. Ct. 1402, 1424, 103 L. Ed. 2d 639, 673 (1989) (Marshall, J.,
dissenting) (asserting that concept of reasonableness is “virtually devoid
of meaning, subject to whatever content shifting judicial majorities,
concerned about the problems of the day, choose to give that supple
term”); Coolidge v. New Hampshire, 403 U.S. 443, 490–91, 91 S. Ct.
2022, 2050, 29 L. Ed. 2d 564, 597 (1971) (Harlan, J., concurring) (calling
for overhaul of Fourth Amendment law); Ker, 374 U.S. at 45, 83 S. Ct. at
1646, 10 L. Ed. 2d at 745 (Harlan, J., concurring) (noting that Court’s
search and seizure decisions are “hardly notable for their predictability”);
Chapman v. United States, 365 U.S. 610, 618, 81 S. Ct. 776, 780, 5 L.
Ed. 2d 828, 834 (1961) (Frankfurter, J., concurring) (“The course of the
true law pertaining to searches and seizures . . . has not—to put it
mildly—run smooth.”).
Friesen, State Courts as Sources of Constitutional Law: How to Become
33Jennifer
Independently Wealthy, 72 Notre Dame L. Rev. 1065, 1092 (1997).
34Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 787–88 (1999).
86
The incoherence of the Supreme Court’s Fourth Amendment
doctrine was recently on full display in Jones, where the Court
considered whether the government violated the Fourth Amendment by
placing a Global Positioning System tracking device on a suspect’s
vehicle. Justice Scalia, relying on his brand of originalist interpretation
of the Fourth Amendment, found that the government action amounted
to a trespass and was thus an unlawful search. Jones, 565 U.S. at ___,
132 S. Ct. at 949, 181 L. Ed. 2d at 918. Justice Alito, joined by three
other members, found Justice Scalia’s opinion incredulous, concluding
that “it is almost impossible to think of late–18th-century situations that
are analogous to what took place in this case.” Id. at ___, 132 S. Ct. at
958, 181 L. Ed. 2d at 928 (Alito, J., concurring). Nonetheless, he found
the government’s action unreasonable under the Fourth Amendment. Id.
at ___, 132 S. Ct. at 964, 181 L. Ed. 2d at 934. Justice Sotomayor
concurred with Justice Scalia’s majority opinion, but stressed that the
Fourth Amendment is not concerned only with trespassory intrusions on
property but has broader application. Id. at ___, 132 S. Ct. at 955–56,
181 L. Ed. 2d at 924–25 (Sotomayor, J., concurring). She noted that
with changing technology “it may be necessary to reconsider the premise
than an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties.” Id. at ___, 132 S. Ct.
at 957, 181 L. Ed. 2d at 926. In light of the inherent challenges of
search and seizure law, the historic difficulties faced by the United States
Supreme Court, and the fractured opinions in cases like Jones, the
notion that we should adopt the United States Supreme Court cases to
introduce guidance or uniformity is simply untenable.
Perhaps in part because of the state of federal precedents, the field
of search and seizure is one of the most vibrant areas of state
87
constitutional law. The majority of states have some kind of independent
state constitutional law in the area. See Barry Latzer, Toward
Decentralization of Criminal Procedure: State Constitutional Law and
Selective Disincorporation, 87 J. Crim. L. & Criminology 63, 92 (1996)
(estimating forty-seven of the fifty states have some departures from
federal precedent).
By way of illustration only, a number of state supreme courts, like
Iowa, have rejected the “good faith” exception to the exclusionary rule.35
Similarly, state supreme courts have rejected the approach of the United
States Supreme Court with respect to the requirements of affidavits
supporting search warrants, 36 the ability of law enforcement to search
curbside garbage without a warrant, 37 whether business records in the
hands of third parties may be produced without a warrant, 38 whether
35See, e.g., State v. Marsala, 579 A.2d 58, 59 (Conn. 1990); Mason v. State, 534
A.2d 242, 254–55 (Del. 1987); State v. Guzman, 842 P.2d 660, 677 (Idaho 1992); State
v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995); State v. Canelo, 653 A.2d 1097, 1105
(N.H. 1995); State v. Novembrino, 519 A.2d 820, 857 (N.J. 1987); State v. Gutierrez, 863
P.2d 1052, 1066 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451, 458 (N.Y. 1985); State
v. Carter, 370 S.E.2d 553, 554 (N.C. 1988); Commonwealth v. Edmunds, 586 A.2d 887,
905–06 (Pa. 1991); State v. Oakes, 598 A.2d 119, 126–27 (Vt. 1991); see also 2 Friesen
§ 11.05[2], at 11–67 to 11–69 & nn.297–315.
36See, e.g., State v. Jones, 706 P.2d 317, 322 (Alaska 1985); State v. Detroy, 72
P.3d 485, 490, 493–94 (Haw. 2003); Commonwealth v. Upton, 476 N.E.2d 548, 556–57
(Mass. 1985); State v. Cordova, 784 P.2d 30, 36 (N.M. 1989); People v. Johnson, 488
N.E.2d 439, 441, 445 (N.Y. 1985); State v. Worsham, 834 P.2d 1033, 1036 (Or. Ct. App.
1992); State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989); State v. Jackson, 688 P.2d
136, 141 (Wash. 1984); see also 2 Friesen § 11.05[1][a], at 11–60 to 11–61 & nn.263–
65, 268–71.
37See, e.g., State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985); State v. Goss,
834 A.2d 316, 318–19 (N.H. 2003); State v. Hempele, 576 A.2d 793, 800–01, 810 (N.J.
1990); State v. Galloway, 109 P.3d 383, 389 (Or. Ct. App. 2005); State v. Morris, 680
A.2d 90, 93–94 (Vt. 1996); see also 2 Friesen § 11.04[3], at 11–38 to 11–39 & nn.164–
65.
38See, e.g., Charnes v. DiGiacomo, 612 P.2d 1117, 1120–21 (Colo. 1980); People
v. Jackson, 452 N.E.2d 85, 89 (Ill. Ct. App. 1983); State v. McAllister, 875 A.2d 866, 875
(N.J. 2005); Commonwealth v. DeJohn, 403 A.2d 1283, 1289–90 (Pa. 1979); State v.
88
random road blocks as part of an effort to alleviate drunk driving run
afoul of search and seizure principles,39 whether a seizure requires a
show of authority or whether a reasonable belief that one is not free to
leave is sufficient, 40 whether a valid consent search requires a knowing
and voluntary waiver, 41 the scope of permissible searches pursuant to a
traffic stop, 42 the extent and scope of the curtilage, 43 and the validity and
scope of reasonable expectations of privacy as an interpretive tool. 44
___________________
Thompson, 810 P.2d 415, 418 (Utah 1991); see also 2 Friesen at 11.04[5], at 11–41 to
42 & nn.176–79.
39See, e.g., Sitz v. Dep’t of State Police, 506 N.W.2d 209, 223–25 (Mich. 1993);
Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994); see also State v.
Henderson, 756 P.2d 1057, 1063 (Idaho 1988) (invalidating sobriety checkpoint where
police lack express legislative authority, particularized suspicion, and judicial approval
on state constitutional grounds prior to United States Supreme Court’s decision to
uphold them on a general reasonableness standard in Michigan Department of State
Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)); State v.
Boyanovsky, 743 P.2d 711, 712 (Or. 1987) (invalidating warrantless sobriety roadblock
under state constitution prior to United States Supreme Court’s decision in Sitz);
Pimental v. Dep’t of Transp., 561 A.2d 1348, 1352 (R.I. 1989) (same); City of Seattle v.
Mesiani, 755 P.2d 775, 777 (Wash. 1988) (same); 2 Friesen § 11.09, at 11–110 to 11–
112 & n.479.
40See, e.g., People v. Hill, 929 P.2d 735, 738–39 (Colo. 1996); State v. Greenfield,
634 A.2d 879, 883 (Conn. 1993); Jones v. State, 745 A.2d 856, 869 (Del. 1999); State v.
Quino, 840 P.2d 358, 362 (Haw. 1992); Commonwealth v. Stoute, 665 N.E.2d 93, 95–98
(Mass. 1996); In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993); State v.
Clayton, 45 P.3d 30, 34 (Mont. 2002); State v. Quezada, 681 A.2d 79, 80–81 (N.H.
1996); State v. Tucker, 642 A.2d 401, 405–06 (N.J. 1994); Commonwealth v. Matos, 672
A.2d 769, 776 (Pa. 1996); State v. Randolph, 74 S.W.3d 330, 336–37 (Tenn. 2002); State
v. Young, 957 P.2d 681, 687–89 (Wash. 1998); State v. Jones, 456 S.E.2d 459, 467 &
n.17 (W. Va. 1995); see also 2 Friesen § 11.010[1], at 11–116 to 11–118 & n.499.
41See,e.g., State v. Trainor, 925 P.2d 818, 828 (Haw. 1996); Penick v. State, 440
So. 2d 547, 551 (Miss. 1983); State v. Carty, 790 A.2d 903, 907 (N.J. 2002);
Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999); see also 2 Friesen § 11.012,
at 11–147 to 11–148 n.618.
42See, e.g., People v. Moorman, 859 N.E.2d 1105, 1116 (Ill. App. Ct. 2006); State
v. Brown, 792 N.E.2d 175, 179 (Ohio 2003); State v. Harris, 916 So. 2d 284, 289 (La.
Ct. App. 2005); Commonwealth v. Gonsalves, 711 N.E.2d 108, 112 (Mass. 1999); State
v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004); State v. Bauer, 36 P.3d 892, 895
(Mont. 2001); State v. Bayard, 71 P.3d 498, 502 (Nev. 2003) (per curiam); State v.
Bricker, 134 P.3d 800, 806–08 (N.M. Ct. App. 2006); see also 2 Friesen § 11.07, at 11–
83 to 11–84 & nn.372, 375–76; id. § 11.010[3], at 11–140 to 11–141 & n.588.
89
A number of courts and scholars have emphasized that search and
seizure law is especially amenable to independent state constitutional
analysis. This is particularly true as the United States Supreme Court
utilizes so called “balancing tests” which involve only contemporary
weighing of competing pragmatic considerations about which reasonable
persons may differ. See generally T. Alexander Aleinikoff, Constitutional
Law in the Age of Balancing, 96 Yale L.J. 943 (1987). Such contemporary
balancing involves “legislative or social facts” about which reasonable
persons may differ. See Williams at 172–73; see also Neil Coleman
McCabe, Legislative Facts as Evidence in State Constitutional Search
Analysis, 65 Temp. L. Rev. 1229, 1242–51 (1992).
As the above material demonstrates, there are good reasons to
develop an independent body of state constitutional law in the search
and seizure arena. We have plenty of judicial company in this
undertaking.
E. Summary. The First American Constitutions were state
constitutions. Many of the initial state constitutions had search and
seizure provisions, which served as a model for Madison as he drafted
the Fourth Amendment. Nothing in the adoption of the United States
Constitution or the Bill of Rights changed the status of state
constitutions as an independent source of law. Indeed, the independent
___________________
43See, e.g., State v. Webb, 943 P.2d 52, 57 (Idaho 1997); State v. Bullock, 901
P.2d 61, 75–76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328, 1337 (N.Y. 1992); State
v. Dixson, 766 P.2d 1015, 1024 (Or. 1988); State v. Kirchoff, 587 A.2d 988, 995–96 (Vt.
1991); see also 2 Friesen § 11.04[1], at 11–34 to 11–37 nn.147–48, 150–51, 154–55.
44See, e.g., State v. Wallace, 910 P.2d 695, 705–07 (Haw. 1996); Moran v. State,
644 N.E.2d 536, 540 (Ind. 1994); State v. Campbell, 759 P.2d 1040, 1048–49 (Or. 1988);
see also 2 Friesen § 11.03[2], at 11–11 to 11–12 nn.39, 41, 43.
90
nature of state constitutional provisions was reinforced by adoption of
the Tenth Amendment.
For most of our constitutional history, the provisions of the Bill of
Rights of the United States Constitution did not apply against the states.
In the middle of the twentieth century, the United States Supreme Court
began to incorporate provisions of the Federal Bill of Rights, including
the Fourth Amendment, to provide a floor of protection against state
transgressions. Incorporation came with two important consequences.
One consequence of incorporation was a tendency to dilute the
substantive protections in order to avoid a nationwide rule that did not
take into account local conditions and experience. Another consequence
was that the focus of the legal community shifted toward federal
constitutional protections and away from protections in independent
state constitutions. As the Supreme Court proceeded to steadily reduce
the scope of constitutional protections, however, state courts began to
reinvigorate their independent state constitutional analysis.
Independent state constitutional law is now a well-established part
of our state’s legal fabric. The independent state constitutional approach
utilized by the majority in this case under article I, section 8 is logical,
comports with the history of both the United States and Iowa
Constitutions, and is solidly supported in our caselaw and the well-
reasoned caselaw of other jurisdictions.
III. Resolution of the Constitutional Issues in This Case.
The majority opinion in this case decides, under the particular
facts and circumstances, that Baldon’s consent cannot be considered
voluntary under article I, section 8 of the Iowa Constitution. We
conclude that when an individual is faced with the so-called “choice” of
consenting to wide-open suspicionless searches or remaining in prison
91
for an extended period of time, the “choice” is not a truly voluntary one.
We thus reject a rigidly formalistic consent doctrine in which the mere
fact that a person is presented with a Hobson’s choice is sufficient to
make consent voluntary. We base our opinion on the common sense
observation that where the state makes the stakes of nonconsent so high
that no reasonable person would choose otherwise, there is no realistic
choice at all. We continue what we started in Pals, namely, insisting that
consent doctrine under article I, section 8 must realistically assess the
ability of the individual to say “No.”
For the reasons well expressed in the majority opinion, the
outcome in this case is the only reasonable one. It would be a plain
fiction to maintain that consent to unlimited search authority was
voluntary when the consequence of refusal is continued long-term
incarceration.
It is possible that such consent would not be found voluntary by
the United States Supreme Court under the Fourth Amendment. Cf.
United States v. Giannetta, 909 F.2d 571, 576 n.4 (1st Cir. 1990) (stating
“a question of coercion would arise as to any contention that ‘agreement’
to a probation search condition constitutes a general consent to search”).
The United States Supreme Court, however, has often applied the
“totality of circumstances” test of Schneckloth in a very unrealistic way.
In Florida v. Bostwick, 501 U.S. 429, 438–40, 111 S. Ct. 2382, 2388–89,
115 L. Ed. 2d 389, 400–02 (1991), the Court determined that consent to
search by passengers on a bus was voluntary even though armed officers
prevented passengers from leaving the confined space of the vehicle.
Similarly, in INS v. Delgado, 466 U.S. 210, 218, 104 S. Ct. 1758, 1763–
64, 80 L. Ed. 2d 247, 256 (1984), the Court determined consent to
search was voluntary even though armed guards blocked the exits to a
92
workplace. By choosing to base our opinion in this area on the Iowa
Constitution, we obtain finality, avoid the necessity of attempting to
follow contradictory and doubtful federal authorities, and develop our
body of independent law.
IV. Conclusion.
For the reasons expressed above, I join in the majority opinion and
concur in the judgment in this case.
93
#10–0214, State v. Baldon
MANSFIELD, Justice (dissenting).
I respectfully dissent. I believe the Iowa Constitution, like the
United States Constitution, permits the government to require a prisoner
as a condition of parole to agree to searches during his or her term of
parole. Such searches should especially be upheld when, as here, they
are under the control and with the authorization of the parole officer, and
when reasonable suspicion exists that the parolee has committed a crime
or violated his terms of parole. While I acknowledge that much of my
disagreement relates to this court’s 2010 decision in State v. Ochoa, 792
N.W.2d 260 (Iowa 2010), I believe the present decision is legally flawed,
even accepting Ochoa.
I. Facts.
The thirty-one-year-old defendant, Isaac Baldon, who had a
substantial criminal history including first-degree theft, third-degree
burglary, possession with intent to deliver a controlled substance,
transportation of a firearm as a felon, and being a felon in possession of
a firearm, was paroled on the latter three charges on November 3, 2008.
In his parole agreement, he specifically agreed to several conditions,
including:
I shall reside at the place designated in the attached Parole
Release instructions and shall not change residence unless I
receive approval from my supervising officer.
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.
I shall abstain from the use, purchase, possession, or
transfer of any drug unless prescribed for me by a physician,
and shall submit to drug monitoring tests when directed by
my supervising officer. I shall not associate with drug users
or sellers while on parole and shall avoid places where drugs
are sold.
94
Six months later, Bettendorf police were patrolling the Traveler
Motel, “probably the single highest crime location that we have in our
city. We check it every day several times a day and run across all
manner of criminal activity at that location,” including drugs,
prostitution, and weapons offenses. Typically, the police check the
license plates of all cars parked at the motel.
Officer Tripp ran a license plate check and determined that a
vehicle registered to Baldon was parked at the motel. He also determined
that Baldon had prior driver’s license revocations and was on parole.
Officer Tripp called in to headquarters and asked that Baldon’s parole
officer be notified. When contacted, Baldon’s parole officer, Officer
Peterson, gave permission for Baldon’s hotel room and vehicle to be
searched. Officer Peterson also said he would be coming to the motel.
Officer Tripp went to the front desk of the motel and learned that
Baldon was registered to a room at the motel. This was different from
the authorized Davenport residence he had provided to his parole officer.
After Officer Peterson arrived, Officer Tripp, Officer Peterson, and two
other police officers went to Baldon’s room and knocked on the door.
Receiving no answer, they knocked again a minute or so later. At this
point, Officer Tripp announced they were police and that Baldon needed
to open the door.
When Baldon opened the door in his underwear, Officer Peterson
recognized him and said hello. A sixteen-year-old girl wearing only a T-
shirt was sitting on the bed. 45 Her underwear was on the floor. One of
45Minors are not allowed at the Traveler Motel. The girl was cited for being a
minor in possession of tobacco and released to a guardian.
95
the officers took her outside. Officer Tripp, Officer Peterson, and the
fourth officer conducted a search of the room and found nothing illegal.
Officer Tripp asked Baldon for the keys to his car. Officer Tripp
went outside, began searching the vehicle, and found a baggie of
marijuana in the trunk area. He then went back to the motel room,
informed Officer Peterson what he had found, and the two of them went
back out to the vehicle and ultimately found five other smaller baggies of
marijuana. After being Mirandized, Baldon admitted that he knew the
marijuana was in the vehicle, he had received it as payment for a debt,
and he anticipated that by breaking it up and selling it he would receive
$800. Baldon was criminally charged, his motion to suppress was
denied, and he was convicted of possession of marijuana with intent to
deliver and failure to have a drug stamp. See Iowa Code § 124.401(1)(d);
id. § 453B.3 (2009).
II. Parole Searches and Our Ochoa Decision.
In a 6–3 decision, the United States Supreme Court held in 2006
that a parolee could be searched by a police officer without a warrant or
particularized suspicion based on a California law that requires every
prisoner eligible for release on parole to “ ‘agree in writing to be subject to
search or seizure by a parole officer or other peace officer at any time of
the day or night, with or without a search warrant and with or without
cause.’ ” Samson v. California, 547 U.S. 843, 846, 126 S. Ct. 2193,
2196, 165 L. Ed. 2d 250, 255 (2006) (quoting Cal. Penal Code § 3067(a)
(West 2000)). The Court noted that parole “is an established variation on
imprisonment of convicted criminals,” and that the state is usually
“willing to extend parole only because it is able to condition it upon
compliance with certain requirements.” Id. at 850, 126 S. Ct. at 2198,
165 L. Ed. 2d at 258 (citation and internal quotation marks omitted).
96
Parolees “have severely diminished expectations of privacy by virtue of
their status alone.” Id. at 852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259.
The Court also observed that the state has an “overwhelming interest” in
supervising parolees because they are more likely to commit future
criminal offenses. Id. at 853, 126 S. Ct. at 2200, 165 L. Ed. 2d at 260
(citation and internal quotation marks omitted).
In Ochoa, a parole search case, we departed from Samson and
decided that the search and seizure clause of Iowa’s Constitution
provides more protection to parolees than the virtually identical Search
and Seizure Clause of the United States Constitution. See 792 N.W.2d at
287–90. We thus held that the Iowa Constitution prohibited warrantless,
suspicionless searches of parolees. We did not claim that this outcome
was required by anything particular in the Iowa Constitution or any
specific precedent under that constitution. Rather, the heart of the
decision was a philosophical disagreement with the Samson holding, and
we explained that we found the three-justice dissent more compelling
than the six-justice majority. Id. at 282–83, 286–91.
I have serious concerns about an approach that treats a United
States Supreme Court decision as just another dish on the menu. See
id. at 267 (“The degree to which we follow United States Supreme Court
precedent, or any other precedent, depends solely upon its ability to
persuade us with the reasoning of the decision.”). The decisions of that
Court are rendered by nine legal scholars of exceptional distinction.
They come only after each case has been the subject of extensive
adversarial briefing, argument, and attention. By contrast, this court
composed its thirty-page state constitutional opinion in Ochoa without
the benefit of any argument other than federal constitutional argument.
See State v. Ochoa, No. 08–0412, 2009 WL 398390, at *2 n.1 (Iowa Ct.
97
Ohio App. 2009) (noting that Ochoa “has not asserted that the state
constitutional provision should be interpreted differently than the Fourth
Amendment”). Simply stated, if we believe in an adversary system, the
adversarial process before the United States Supreme Court is far more
robust. That is especially true when, as in Ochoa, we venture into state
constitutional issues that no one has briefed. 46
I believe we went too far in Ochoa. We abandoned longstanding
precedent without admitting we were doing so. We read too much into
the text and history of the Iowa Constitution. And, even assuming it was
appropriate to treat Samson as just another option, our simplistic “home
trumps parolee status” approach was too dismissive of the grounds on
which Samson was decided.
The first error committed by the court in Ochoa was to discard a
long line of Iowa Supreme Court cases, many of them rather recent,
giving deference to federal interpretations of the Fourth Amendment.
Because the search and seizure clause of the Iowa
Constitution is nearly verbatim to the language of the Fourth
Amendment, cases interpreting the Fourth Amendment are
persuasive—but not binding—on our interpretation of the
Iowa Constitution. We usually interpret the scope and
purpose of the Iowa Constitution’s search and seizure
provisions to track with federal interpretations of the Fourth
Amendment.
State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citation omitted).
“The scope and purpose of Iowa’s search and seizure clause is
coextensive with the federal court’s interpretation of the Fourth
Amendment.” State v. Carter, 733 N.W.2d 333, 337 (Iowa 2007). “The
46Here, as in Ochoa, the court’s opinion is self-generated. It is not based on
matters the appellant has briefed on appeal. Baldon’s brief does not even address the
consent issue. He maintains, rather, that we decided that question in Ochoa and that
Ochoa controls this case. See Appellant’s Br. at 10–11.
98
Iowa Supreme Court generally interprets article I, section 8 of the Iowa
Constitution to track federal interpretations of the Fourth Amendment.”
Atwood v. Vilsack, 725 N.W.2d 641, 650 (Iowa 2006). “Cases interpreting
the federal constitution are persuasive in our interpretation of the state
constitution because the federal and state search-and-seizure clauses
are similar.” State v. Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).
Because the federal and state search-and-seizure clauses are
nearly identical, federal cases interpreting the federal
provision are persuasive in our interpretation of the state
provision. However, such cases are not binding on this court
regarding our interpretation of the state provision.
State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005) (citation and internal
quotation marks omitted).
The Iowa Constitution also contains a search and seizure
clause that is virtually identical to the Fourth Amendment.
Accordingly, 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.
State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003) (citations and internal
quotation marks omitted).
Despite the length of the court’s opinion, Ochoa did not mention
any of these recent statements. 47 Instead, it made the following
assertion: “This court has to date generally developed a body of
independent state constitutional law in the search and seizure area
slowly and cautiously.” Ochoa, 792 N.W.2d at 265.
That is overstating things a bit. Actually, a careful reading of
Ochoa would reveal exactly one cited case where we had diverged from
47Ochoacites a few cases with similar language, but the last one is from 1988.
See Ochoa, 792 N.W.2d at 266 (citing State v. Showalter, 427 N.W.2d 166, 168 (Iowa
1988)). Ochoa would thus have the reader believe that only “older cases” embraced
such an approach. Id. That is simply not true.
99
federal interpretation of the Fourth Amendment in our interpretation of
article I, section 8. See State v. Cline, 617 N.W.2d 277 (Iowa 2000),
abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2
(Iowa 2001). In Cline, this court declined to follow United States v. Leon,
468 U.S. 897, 104 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), which
recognized a good faith exception to the application of the exclusionary
rule. See 617 N.W.2d at 285–93.
Several points about Cline should be noted. First, the case was
about remedy, not right. We did not say the Iowa Constitution would
invalidate a search that the United States Constitution permits. In fact,
we applied both federal and Iowa precedent in finding the underlying
search unconstitutional, stating,
Because the language of article I, section 8 of the Iowa
Constitution is nearly identical to the Fourth Amendment,
the two provisions are generally deemed to be identical in
scope, import, and purpose. Therefore, although our
discussion of probable cause will focus on the Fourth
Amendment, our analysis of this issue is equally applicable
to the defendant’s claim under the Iowa Constitution.
Id. at 281–82 (citation and internal quotation marks omitted). Cline
simply held that Iowa’s courts, as a matter of remedy, would not allow
the use of evidence that had been unconstitutionally obtained.
Second, even on the question of remedy, we continued to sound a
note of deference. Thus, concerning the exclusionary rule, we said, “In
accordance with these general principles, we strive to be consistent with
federal constitutional law in our interpretation of the Iowa Constitution,
but we jealously guard our right and duty to differ in appropriate cases.”
Id. at 285 (citation and internal quotation marks omitted).
Third, in deviating from federal precedent concerning the
exclusionary rule, we followed an approach that, according to our
100
research, most states addressing the issue had taken under their own
state constitutions. See id. at 293 n.3.
None of these observations applies to Ochoa. Contrary to Cline and
a host of prior and (as noted) subsequent decisions, we abandoned in
Ochoa all deference to federal interpretation of the Fourth Amendment.
We claimed that we did so “to resolve any inconsistency in our prior
cases.” Ochoa, 792 N.W.2d at 267. That assertion was incorrect. There
was no prior inconsistency on the question whether United States
Supreme Court interpretations of the Fourth Amendment were entitled to
deference in interpreting the nearly identical wording of article I, section
8. We simply decided to go in a different direction. 48
Having set aside what went before, this court in Ochoa then
embarked on a brief textual analysis of article I, section 8. We observed
that in article I, section 8, the reasonableness clause and the warrant
48Seeking to patch this hole in Ochoa, the majority now cites State v. Tonn, 195
Iowa 94, 104–07, 191 N.W. 530, 535–36 (1923), a case where this court decided that
the exclusionary rule does not apply in Iowa and thus found that article I, section 8
should provide less protection than the Fourth Amendment. Tonn, like Cline, was a
case about remedy, not about the scope of the right. Tonn has not been the law since
1961, when the United States Supreme Court held that the Fourteenth Amendment
requires the federal exclusionary rule apply to the states. See Mapp v. Ohio, 367 U.S.
643, 655–57, 81 S. Ct. 1684, 1691–92, 6 L. Ed. 2d 1081, 1090–91 (1961).
Tonn was not cited in Ochoa, perhaps because it did not fit the narrative of Iowa
historically having given “considerable solicitude to the sanctity of the home.” See
Ochoa, 792 N.W.2d at 284. But see Tonn, 195 Iowa at 101–02, 191 N.W. at 532–33
(upholding a warrantless search where the county attorney simply went to the hotel
where defendant was staying and, without his knowledge, retrieved his suitcase and
handbag).
Tonn justified its deviation from the federal exclusionary rule partly on the
ground that “the overwhelming weight of authority in the state courts” already had
decided not to follow that rule. 195 Iowa at 106, 191 N.W. at 534.
I agree that Tonn is one other case where this court declined to follow Federal
Fourth Amendment interpretation. But it is truly a stretch to link Tonn and Ochoa, as
if two disconnected opinions nearly one hundred years apart represent a consistent and
unbroken line of authority.
101
clause are separated by a semicolon, whereas in the Fourth Amendment
they are separated by a comma. Id. at 268–69. Citing a famous
monograph on style, the court indicated that “a semicolon is used to
emphasize the relationship between the two clauses of the sentence.” Id.
Thus, the court suggested (although it fell short of saying) that in Iowa’s
Constitution, there might be a closer connection between the two
clauses. This strikes me as taking the grammarian out of context. As
compared to a period, a semicolon might suggest a greater connection,
but compared to a comma? Indeed, the cited grammarian makes this
very point. See William Strunk, Jr. & E.B. White, The Elements of Style 6
(4th ed. 2000) (stating that a semicolon “suggests the close relationship
between the two statements in a way that the [version consisting of two
sentences separated by a period] does not attempt, and better then the
[version consisting of two clauses separated by a comma and a
conjunction] because it is briefer and therefore more forcible”). There
are, it is worth noting, several other nonsubstantive variations between
the two documents. For instance, the Iowa Constitution reorders the
words “searches and seizures” to read “seizures and searches” and
replaces “Warrants” with “warrant.” I would not extract a substantive
meaning out of these cosmetic differences.
Ochoa’s textual discussion was then followed by a bibliographical
historical discussion of the Fourth Amendment. Ochoa, 792 N.W.2d at
269–72. Yet the opinion itself concluded that the eighteenth century
historical record was of limited usefulness in addressing parole systems
that were not introduced until the late nineteenth century. Id. at 272.
Turning then to the Iowa historical record, the Ochoa opinion
found that it “tends to shed light on the value the Iowa framers placed on
article I, section 8.” Id. at 274. I think the basis for drawing this
102
conclusion is exceedingly thin. Ochoa quoted a statement from one of
our framers of our present 1857 Constitution. Id. (quoting Mr. Ells).
The point he was making, however, had nothing to do with article I,
section 8. He was explaining, rather, why his committee was proposing
additional enumerated rights that, unlike article I, section 8, had not
been part of the previous constitution. 1 The Debates of the
Constitutional Convention of the State of Iowa 100 (W. Blair Lord rep.,
1857), available at http://www.statelibraryofiowa.org/services/collec-
tions/law-library/iaconst.
In addition, Ochoa quoted a statement from a framer of the 1844
Constitution. According to Ochoa, this framer “deemed the most
important right was ‘to secure to the poor man a little spot of ground
where he could build him a cottage and have a home for himself and
family, free from the fear of being turned out of doors.’ ” See 792 N.W.2d
at 275 (quoting Mr. Lucas). However, this statement also had nothing to
do with search and seizure. Rather, it related to a proposed homestead
amendment, providing that “[e]very person residing in the State to have
the right to hold 80 acres of land, with the improvements, or a house,”
which did not make it into the 1844 (or the 1857) Constitution. See
Fragments of the Debates of the Iowa Constitutional Conventions of 1844
and 1846, at 159 (Benjamin F. Shambaugh ed., 1900), available at
http://www.statelibraryofiowa.org/services/collections/law-
library/iaconst.
Ochoa added that “the drafters of the Iowa Constitution placed the
Iowa Bill of Rights at the beginning of the constitution, for apparent
emphasis.” 792 N.W.2d at 274. No citation is provided for the “apparent
emphasis” claim. I think it is difficult to draw any inference from the
ordering of provisions within our constitution. The 1844 and the 1846
103
constitutions also began with a bill of rights. Article I, section 5 of the
1857 Constitution (repealed in 1992) provided that someone who had
engaged in dueling would be disqualified from holding public office. Does
this mean our framers thought article I, section 5 was more important
than article I, section 8?
Ochoa also discussed briefly other states’ constitutional precedents
on parole searches. 792 N.W.2d at 283–84. It indicated that courts were
divided before Samson on the constitutionality of suspicionless parole
searches and noted that since Samson, two state supreme courts had
“declined to depart from Samson in interpreting their state
constitutions.” Id. at 284.
With the benefit of more than two years’ additional experience, it
so far appears that this court stands alone in its flat-out rejection of
Samson. See In re Miranda, 289 P.3d 957, 961 (Colo. 2012) (citing
Samson and stating that in Colorado, “parole officers may search
parolees’ persons, residences, or vehicles unannounced, without a
warrant, and without reasonable suspicion”); State v. Cruz, 174 P.3d
876, 881 (Idaho Ct. App. 2007) (declining to hold that the Idaho
Constitution provides more protection than Samson and noting that
Idaho has provided greater protections “based on the uniqueness of our
state, our Constitution, and our long-standing jurisprudence,” but
“[n]one of these factors support a divergence from the interpretation of
the Fourth Amendment by the United States Supreme Court in this
case”); State v. Bartylla, 755 N.W.2d 8, 18–19 (Minn. 2008) (applying
Samson under the Minnesota Constitution and stating that “we do not
believe that the Samson approach reflects a retrenchment on the Bill of
Rights”); State v. Turner, 297 S.W.3d 155, 166 (Tenn. 2009) (“A parole
condition requiring that the parolee submit to warrantless searches is
104
reasonable in light of the parolee’s significantly diminished privacy
interests; the goals sought to be attained by early release; and society’s
legitimate interest in protecting itself against recidivism. We therefore
adopt the reasoning of Samson and hold that the Tennessee Constitution
permits a parolee to be searched without any reasonable or
individualized suspicion where the parolee has agreed to warrantless
searches by law enforcement officers.”). In fact, the only out-of-state
reported opinion to have cited Ochoa is a single judge’s dissent. See
State v. Johnson, 813 N.W.2d 1, 18 (Minn. 2012) (Meyer, J., dissenting).
This should give us pause.
In addition, Ochoa discussed State v. Cullison, 173 N.W.2d 533(Iowa 1970). See Ochoa, 792 N.W.2d at 285–86. But Ochoa recognized
that Cullison was a Fourth Amendment decision. As described by the
Ochoa court, Cullison “held that a parolee is afforded the same rights as
any other person under the Fourth Amendment.” Id. at 286. That was a
correct characterization. The case makes no reference at all to article I,
section 8 of the Iowa Constitution. The issue was whether a parolee by
virtue of his or her status loses Fourth Amendment protection. Cullison
applied mostly federal and out-of-state authority to conclude that “an
Iowa State parolee’s Fourth Amendment rights, privileges and
immunities, [should] be accorded the same recognition as any other
person.” 173 N.W.2d at 536–37. As a Fourth Amendment decision,
Cullison has been superseded by more recent United States Supreme
Court authority. We did not suggest in Ochoa that Cullison was in any
way a controlling precedent. 49
49Cullisoncited article II, section 5 of our constitution for the proposition that a
convicted felon on parole loses the right to vote or hold public office. 173 N.W.2d at
105
Thus, Ochoa really came down to a disagreement with Samson.
And there was not that much to say. Taking issue with the Samson
majority, Ochoa concluded, “[T]he fact that a parolee is released into the
larger community is the overriding factor for purposes of search and
seizure analysis.” 792 N.W.2d at 291. In short, Ochoa squarely rejected
the Samson view that parole is a “variation on imprisonment,” see
Samson, 547 U.S. at 850, 126 S. Ct. at 2198, 165 L. Ed at 258, and
instead found dispositive the parolee’s physical location outside of
prison. Thus, the general authority that the state unquestionably has to
conduct searches inside prison could not be applied, in the Ochoa court’s
view, once the prisoner had left prison on parole. 50
I disagree with that underlying philosophical view. Consider this
question: If the “sanctity of the home” trumps an offender’s status, as we
held in Ochoa, why has this court repeatedly upheld sex offender
residency restrictions? See, e.g., Formaro v. Polk County, 773 N.W.2d
834 (Iowa 2009); State v. Seering, 701 N.W.2d 655 (Iowa 2005). These
restrictions, which apply even after parole, severely limit where certain
sex offenders can live. Most people would regard them as a more serious
intrusion on “sanctuary, comfort, seclusion, security, and identity” than
the search provision at issue in Ochoa. See Ochoa, 792 N.W.2d at 289. I
recognize that we are talking about different constitutional provisions.
But if we are going to engage in value-driven analysis, as we did in
Ochoa, why has status won out in one area but not the other?
___________________
537. However, its conclusion that he or she retains all other rights, including Fourth
Amendment rights, was not based on anything in the Iowa Constitution. Id.
50We also cited “academic commentary” that was critical of Samson, the specific
examples being one treatise and a “raft of student notes.” Ochoa, 792 N.W.2d at 286–
87.
106
As a result of Ochoa and its elimination of deference to federal
interpretation of the Fourth Amendment, we now have two different sets
of search and seizure rules in Iowa. If Ochoa or Baldon had been
prosecuted for violating federal drug laws based on the incidents in
question, notwithstanding the fact that the underlying search was
conducted by state officials, the established Fourth Amendment law
would have applied. See United States v. Bach, 310 F.3d 1063, 1066 (8th
Cir. 2002) (“[F]ederal courts in a federal prosecution do not suppress
evidence that is seized by state officers in violation of state law, so long
as the search complied with the Fourth Amendment.”). Thus, any
motion to suppress would have been denied, and the denial would have
been upheld on appeal. However, because they were prosecuted in state
court, our rather unclear work-in-progress version of search and seizure
jurisprudence under article I, section 8 applies.
The United States Supreme Court’s interpretation of the Fourth
Amendment has been comparatively stable. See Davis v. United States,
___ U.S. ___, ___, 131 S. Ct. 2419, 2433, 180 L. Ed. 2d 285, 301 (2011)
(“Decisions overruling this Court’s Fourth Amendment precedents are
rare.”). And there are decisions from many other appellate courts
available to fill in gaps left by that Court. Unfortunately, Iowa officials
can no longer rely on the very substantial body of law interpreting the
Fourth Amendment and must instead engage in guesswork as to what
this court will do next. I do not believe this disparity and uncertainty
serve the public interest.
The concurrence offers two divergent reasons for not deferring to
United States Supreme Court jurisprudence in this area. At one point,
my colleague says that the Court’s Fourth Amendment decisions display
“a striking lack of stable consensus” and are marked by “incoherence.”
107
Later, my colleague maintains that the Court has “proceeded to steadily
reduce the scope of constitutional protections” and has “a tendency to
dilute the substantive protections.” One cannot have it both ways.
Either the Court (in the view of the concurrence) is being inconsistent
and unpredictable in its rulings, or it is on a consistent march to limit
Fourth Amendment rights—unless one believes that ruling in favor of the
government is itself a sign of incoherence. The concurrence states, “Law
enforcement officials need not learn two different standards; they need
only learn one, namely, whatever standard is most restrictive.” But what
is the Iowa standard? We have three cases—Ochoa, State v. Pals, 805
N.W.2d 767 (Iowa 2011), and now Baldon. I doubt even my colleagues
would claim that this handful of decisions provide any meaningful
guidance. They make it clear that what the United States Supreme
Court has approved is not good enough, but without explaining what
would be good enough.
The concurrence implies that more restrictions against “arbitrary
exercise of government power” are on their way from this court.
Therefore, according to the concurrence, “when in doubt, get a warrant.”
If this is the court’s search and seizure jurisprudence, it is so generalized
as to be meaningless. Obviously, there are some circumstances when all
members of this court would vote to uphold a warrantless search.
The concurrence also makes the point that “a state in the federalist
system amounts to a ‘laboratory’ of democracy.” But when we substitute
our judgment for that of Iowa’s elected government on when a parolee
may be searched, we are not being democratic. Rather, we are
108
overturning the decision of the people’s representatives. 51 It is
noteworthy that a number of states have chosen to limit parole searches
as a matter of law or regulation. See, e.g., State v. Coleman, 257 P.3d
320, 327 (Kan. 2011) (noting that “[w]hile the Samson Court found that
California parole conditions allowed the police to conduct suspicionless
searches of parolees, the Kansas Legislature and the Parole Board
elected to place restrictions on parolee searches”); State v. Benavidez,
231 P.3d 1132, 1137 (N.M. Ct. App. 2010) (requiring reasonable
suspicion for a warrantless parolee search based on state regulation, not
the state constitution); State v. Rowan, 814 N.W.2d 854, 861 (Wis. 2012)
(rejecting a federal and state constitutional challenge to a parole
condition authorizing suspicionless searches that was imposed based on
a court’s individualized determination pursuant to Wisconsin law).
The issue is not whether we have the authority to independently
interpret our own constitution. Clearly we do. Nor is the issue whether
we are the final arbiters of the meaning of that constitution. Clearly we
are. The issue is whether this substantial authority should be exercised
in the search and seizure area with a degree of self-imposed modesty and
51The concurrence’s invocation of Justice Brandeis’s famous phrase is a bad fit.
When Justice Brandeis used that phrase, he was dissenting from his colleagues’
decision to strike down an Oklahoma law on constitutional grounds. He wrote, “It is
one of the happy incidents of the federal system that a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel social and economic experiments
without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262,
311, 52 S. Ct. 371, 386–87, 76 L. Ed. 747, 771 (1932) (Brandeis, J., dissenting)
(emphasis added). The problem with lab experiments performed by the judiciary is that
the citizens have not chosen them. And if they do not work out, it is difficult to pull the
plug on them. This does not mean that Iowa judges should hesitate to follow their
sworn duty to uphold the Iowa Constitution, but they should not be deviating from
federal constitutional precedent simply to promote what the concurrence calls “cross-
fertilization” or “vertical federalism.”
109
restraint. That was the approach taken by this court until three years
ago. I think it was a good one.
III. The Consent Issue.
Be that as it may, we did leave open several questions in Ochoa.
For one thing, the search in that case was conducted by the police
without the involvement of a parole officer. Ochoa, 792 N.W.2d at 262.
And there was no particularized suspicion of criminal activity or a parole
violation. Id. at 263. In addition to leaving open those matters, id. at
291, we also did not decide whether the parolee could be bound by an
agreement consenting in advance to such a search. Id. This case
presents all of those circumstances. However, my colleagues choose only
to address one of them—the enforceability of a consent.
My colleagues could have decided the consent question by applying
the well-developed body of federal constitutional law starting with
Schneckloth v. Bustamonte. See 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973); see also Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199
n.3, 165 L. Ed. 2d at 259 n.3 (leaving this question undecided). This
might have led them to the same result. Unfortunately, rather than
follow the well-established Schneckloth road, my colleagues have decided
to bushwhack their own path under the Iowa Constitution. Thus, while
they initially discuss Schneckloth, they then veer away from it and opt for
a “practical” approach based on “contract law.” Under this approach, the
consent is deemed invalid because the prisoner has no “bargaining
power”: The prisoner’s only choices are (1) to remain in prison and be
subject to suspicionless searches or (2) to agree to be subject to
suspicionless searches as a condition of leaving prison.
This syllogism sounds good if you say it quickly, but I think it falls
apart on further analysis. If the prisoner is waiving a right that he or she
110
did not have before entering into the agreement, that should be more of a
reason to honor the waiver.
Parole is a privilege. “There is no constitutional or inherent right
to be conditionally released from prison prior to the expiration of a valid
sentence.” State v. Cronkhite, 613 N.W.2d 664, 667 (Iowa 2000). Thus,
as a matter of fair bargaining and contract law, I do not understand why
it is unfair for the state to insist upon the continued ability to conduct
searches as part of the bargain. Indeed, by the majority’s logic, virtually
all the conditions of the parole agreement should be unenforceable,
because these are all things the defendant cannot do while in prison
(e.g., “I shall not change residence unless I receive approval,” “I shall not
associate with drug users,” etc.). 52
The Iowa Department of Corrections requires each inmate to sign a
parole agreement before being paroled. Iowa Admin. Code r. 201—
45.1(2) (“The parolee may not be released on parole prior to the execution
of the parole agreement.”). It is undisputed that the parole officer
reviewed Baldon’s parole agreement with him before he signed it. We
should be encouraging the use of these parole agreements, not
discouraging them. Contracts where a convicted felon such as Baldon
agrees in writing to certain rules and expectations are an important part
of the rehabilitative process.
In short, the majority’s contract-based analysis is backward: It
would be more appropriate to invalidate the contract if the state used the
52The majority more or less concedes in a footnote that this is a correct reading
of its opinion. In other words, a parole agreement is a waste of time because none of it
is enforceable. However, my colleagues leave open the possibility that other parole
conditions might be valid, not because the parolee agreed to them, but because the
State ordered them and they are “reasonable.” While I think such caveats are helpful,
they do not afford the predictability needed in this area.
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benefits of parole to extract a concession that the prisoner did not
otherwise have to give. By the same token, like the Samson majority, I
find it easier to uphold a warrantless search of a parolee than a
probationer because parole is more akin to imprisonment than probation
is to imprisonment and because a parolee is coming from prison. See
547 U.S. at 850, 126 S. Ct. at 2198, 165 L. Ed. 2d at 258. My
colleagues’ reasoning is on the wrong track here as well.
One could argue that the right to be free from warrantless,
suspicionless searches and seizures in the outside world is so important
that it cannot be waived in advance, even by prisoners. At times, the
majority hints at that approach, saying, “As a mandatory term of parole,
such consent would also have the effect of justifying the search on the
basis of parole status. This is not permitted under Ochoa.” The majority
also refers to giving article I, section 8 its “integrity,” a somewhat
amorphous concept that seems to suggest the right is not waivable. I
would not agree with that view, but at least it would be a logical way to
defend the result reached by the majority in this case. The majority’s
wholesale rejection of parole agreements and misapplication of contract
law, however, leave me baffled.
Most states to have confronted the question have upheld the
validity of parole agreements in which the parolee consents in advance to
warrantless searches. See McFerrin v. State, 42 S.W.3d 529, 534–35
(Ark. 2001) (“[W]e have held that a parolee’s advance consent is valid
because the parolee remains in the custody of the penal institution from
which he is released . . . .”); State v. Devore, 2 P.3d 153, 156 (Idaho Ct.
App. 2000) (“The ‘reasonable grounds’ requirement for warrantless
searches by probation or parole officers does not apply when the subject
of the search has entered into a probation or parole agreement that
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includes a consent to warrantless searches.”); People v. Wilson, 885
N.E.2d 1033, 1042 (Ill. 2008) (upholding an agreement where the parolee
consents in advance to warrantless searches); Sullivan v. Bunting, 975
N.E.2d 999, 1001 (Ohio 2012) (per curiam) (upholding the search of a
parolee’s email based on his prior consent to warrantless searches); see
also Roman v. State, 570 P.2d 1235, 1241–42 (Alaska 1977) (“Depending
on the nature of the crime involved, a condition of release granting
authorities the right to search premises and persons at reasonable times
could stand muster under both the Alaska and federal Constitutions.”);
William E. Ringel, Searches and Seizures, Arrests and Confessions § 17:8
(2012) (“In most jurisdictions, one of the conditions in [parole]
agreements is that the parolee or probationer consents to the search of
himself, his possessions, and his residence by a parole officer, and a
majority of courts give effect to such provisions.”).
The consent to search in the standard IDOC parole agreement is
broad and authorizes searches “without . . . reasonable cause” and by
any “law enforcement officer.” In some states, this permission has been
judicially narrowed. See State v. Heaton, 812 N.W.2d 904, 906, 909
(Minn. Ct. App. 2012) (holding a parole agreement provision that “[t]he
offender will submit at any time to an unannounced visit and/or search
of the offender’s person, vehicle or premises by the agent/designee”
justifies a search so long as reasonable suspicion exists); Commonwealth
v. Hughes, 836 A.2d 893, 899 (Pa. 2003) (finding that a search pursuant
to a parole agreement is permissible when “(1) the parole officer had
reasonable suspicion to believe that the parolee committed a parole
violation; and (2) the search was reasonably related to the duty of the
parole officer”); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983)
(holding that notwithstanding an agreement, the state still must have
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reasonable grounds for investigating whether a parolee has violated the
terms of parole or committed a crime); Pena v. State, 792 P.2d 1352,
1356–58 (Wyo. 1990) (adopting Utah’s approach).
If that approach were followed here, the search would still be
upheld. Baldon was violating the terms of his parole by staying at the
Traveler Motel, a known hotbed of drug and weapons violations. Yet the
majority’s sweeping approach does not allow for this outcome, either.
Although the majority purports to apply contract law, it disregards the
tenet that when a contract is unconscionable, the court may simply
“limit the application of any unconscionable term as to avoid any
unconscionable result.” Restatement (Second) of Contracts § 208, at 107
(1981).
The majority’s approach, I fear, will discourage the granting of
parole to inmates who deserve it. Corrections officials need to be
confident that they can detect and deter recidivism. The majority’s rule
raises the costs of detecting and deterring recidivism by telling the State
if it releases a convicted drug dealer, it may not be able to do a parole
check on that dealer if he chooses to stay at a motel that is a drug haven
instead of being at the residence where he is supposed to be. 53
Also, parole agreements—like other agreements—have the
advantage of predictability. The majority’s approach, by contrast, turns
law enforcement into legal guesswork. In this case and Pals, my
colleagues have made it clear that Iowa will not follow the established
federal constitutional standards for when a consent to search is
53As my colleagues note in their majority opinion, this very point has been made
by the late Professor William Stuntz. William J. Stuntz, Implicit Bargains, Government
Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 580–81 (1992).
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voluntary. But they have failed to articulate a coherent theory of
voluntariness to replace it. 54
Pals involved a brief and amicable encounter between a police
officer and an individual whom he had pulled over for having a dog at
large. Both the majority and the dissent on the court of appeals agreed
that the consent to search of the vehicle was voluntarily given. See State
v. Pals, No. 09–0064, 2010 WL 447322, at *5 (Iowa Ct. App. Feb. 10,
2010) (majority opinion) (stating that “the circumstances as a whole leave
no doubt that his consent was voluntary”); id. at *8 (Doyle, J., dissenting)
(“I agree that . . . Wubben’s request for consent to search the truck was
completely devoid of any coercion, undue pressure, or threats, and that
Pals’s consent was voluntary”). Yet this court reversed on the
voluntariness of the consent, emphasizing a variety of procedural
circumstances, including the fact that the individual had not been given
specific advice that he could refuse to consent. Pals, 805 N.W.2d at 782–
83.
Here the court can hardly fault the procedures under which
consent was given—a written agreement was reviewed with Baldon before
he signed it. So it focuses on “disproportionate bargaining power,”
because if the prisoner does not sign the agreement, he or she has to
remain in prison. Thus, the court purports to apply an
unconscionability analysis derived from contract law. But if we consider
my colleagues’ reasoning, it would seem to invalidate as involuntary
many plea bargains. Doesn’t the State have the same “disproportionate
54The concurrence pats this court on its back for doing the “hard work” of
“[d]eveloping a meaningful independent state constitutional analysis” instead of “simply
match[ing] our constitutional cases against federal precedents.” I respectfully disagree.
In my view, it is harder to work within an existing, well-developed line of authority, as
courts generally do, than to branch off on one’s own on an ad hoc basis.
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bargaining power” when it has caught a criminal red-handed and offers
him or her the opportunity to avoid many years in prison through a plea
bargain?
Again, I could understand (although I would disagree with) the
notion that the right to be free from suspicionless searches of a home,
motel, or car is so important that it cannot be waived in an advance by a
prisoner. Arguably, Ochoa foreshadowed such a result. A
straightforward Schneckloth analysis might also support the majority’s
conclusion. But the majority’s ill-conceived venture into contract law, I
fear, will only lead to more uncertainty and undesirable consequences in
other areas of criminal law.
IV. The Specifics of This Case.
Even if one were inclined to invalidate some warrantless searches
of parolees, this would not be the case to do so. Baldon’s parole officer
was present and both authorized and supervised the search. Moreover,
at the time the search of Baldon’s car occurred, it was already known
that he was in violation of his parole agreement. Indeed, he was staying
at a motel (that prohibited minors) with a school-age girl. In short, as I
have already noted, this case presents two additional justifications for a
parole search—the presence of the parole officer and the existence of
reasonable suspicion or at least a clear parole violation. See United
States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593, 151 L. Ed. 2d
497, 507 (2001) (holding unanimously that a warrantless search of a
probationer’s apartment that was supported by reasonable suspicion and
authorized as a condition of his probation was reasonable within the
meaning of the Fourth Amendment); Griffin v. Wisconsin, 483 U.S. 868,
880, 107 S. Ct. 3164, 3172, 97 L. Ed. 2d 709, 721–22 (1987) (holding
that the special needs of Wisconsin’s probation system justified a
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warrantless search of a probationer by probation officers pursuant to a
Wisconsin regulation that allowed probation searches based on
reasonable grounds).
Unfortunately, the majority plays a bit of gotcha, finding that the
State has waived any basis other than consent for upholding the search.
This strikes me as unfair to the State. When this case was heard in the
district court, we had not decided Ochoa. Baldon’s motion to suppress
argued the parole agreement was unenforceable under both the United
States and Iowa Constitutions, but Baldon did not urge a separate
interpretation of the search and seizure clause in the Iowa Constitution.
Not surprisingly, the trial court denied Baldon’s motion to suppress on
the authority of Samson and the court of appeals decision in Ochoa
(which had relied on Samson to uphold the parole search). Given the
defendant’s failure to advance a separate state constitutional argument
against the enforceability of the consent, and Samson’s status as a
binding interpretation of federal constitutional law, the State presumably
believed that it did not need to make a separate “reasonableness” or
“special needs” argument below.
Now our Ochoa decision and today’s decisions have changed the
landscape. Baldon is being granted relief under a separate state
constitutional argument he never made below. Yet we deny to the State
the opportunity to go back to the district court and try to defend the
search under our remade case law. Why?
It should be noted that Baldon himself does not object to our
considering whether the search of the car was justified based on the
presence of the parole officer or the existence of individualized suspicion.
To the contrary, he briefed those issues in his opening brief. He logically,
and I believe correctly, assumed those issues were still in play.
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For the foregoing reasons, I respectfully dissent.
Waterman, J., joins this dissent.