State of Iowa v. Bion Blake Ingram

IN THE SUPREME COURT OF IOWA
No. 16–0736
Filed June 29, 2018
STATE OF IOWA,
Appellee,
vs.
BION BLAKE INGRAM,
Appellant.
Appeal from the Iowa District Court for Jasper County, Steven J.
Holwerda, Judge.
Defendant appeals his conviction for possession of
methamphetamine. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
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APPEL, Justice.
In this case, a driver challenges the constitutionality of an
inventory search of his vehicle, which was to be towed after police
discovered it was not lawfully registered. After conducting a search, the
police found a controlled substance. The district court denied the
driver’s motion to suppress, and he was convicted of possession. The
driver argues this search was unconstitutional under the Fourth
Amendment of the United States Constitution. Alternatively, even if the
Federal Constitution does not prohibit warrantless inventory searches
under these particular circumstances, the driver argues article I, section
8 of the Iowa Constitution provides greater protections.
We accept the invitation to restore the balance between citizens
and law enforcement by adopting a tighter legal framework for
warrantless inventory searches and seizures of automobiles under article
I, section 8 of the Iowa Constitution than provided under the recent
precedents of the United States Supreme Court. In doing so, we
encourage stability and finality in law by decoupling Iowa law from the
winding and often surprising decisions of the United States Supreme
Court. In the words of another state supreme court, we do not allow the
words of our Iowa Constitution to be “balloons to be blown up or deflated
every time, and precisely in accord with the interpretation of the U.S.
Supreme Court, following some tortious trail.” Penick v. State, 440
So. 2d 547, 552 (Miss. 1983). We take the opportunity to stake out
higher constitutional ground today.
I. Facts and Procedural Background.
At about 6:39 a.m. on October 30, 2015, a police officer pulled over
Bion Ingram, who was driving on Highway 14 in Newton, Iowa. The
officer had noticed the vehicle’s license plate was not illuminated as
required. After speaking with Ingram, the officer also noticed the
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vehicle’s registration sticker did not match its license plate—the vehicle’s
actual registration had expired in 2013. Because of the registration
violation, the officer decided to impound the vehicle and told Ingram it
would be towed.
The officer did not arrest Ingram at that point but had him sit in
the patrol vehicle while the officer wrote citations for the traffic
violations. Ingram told the officer he was going to work, and the officer
agreed to drive Ingram to a nearby gas station for Ingram’s friend to pick
him up and take him to work. Ingram asked to be able to retrieve his
work items from the vehicle, but the officer did not allow Ingram to do
this until the officer finished writing the citations.
The officer told Ingram the contents of the vehicle would be
inventoried before towing and asked Ingram if there was anything of
value in the vehicle. Ingram said there was nothing of value in the
vehicle. Another officer arrived and inventoried the contents of the
vehicle. The officers did not obtain a warrant to search the vehicle.
During the inventory, the second officer discovered a black cloth
bag on the floor next to the gas pedal. When the officer opened the bag,
the officer discovered a glass pipe and what field tests revealed to be
almost a gram of methamphetamine. Ingram was arrested.
Ingram was charged by trial information with possession of
methamphetamine, second offense, and charged by citation with
possession of drug paraphernalia. Ingram filed a motion to suppress the
results of the search based on the Fourth Amendment of the United
States Constitution and article I, section 8 of the Iowa Constitution.
Ingram argued the search violated his rights under the Fourth
Amendment and article I, section 8. Ingram contended the inventory
search should not have been conducted and the vehicle impoundment
4
was a pretext to search the vehicle. The State resisted. The district
court held a hearing on the motion to suppress and denied the motion on
the ground that inventory searches are an exception to the warrant
requirement.
Ingram was tried on the minutes on March 30, 2016. The judge
found Ingram guilty of both charges on April 4. Ingram appealed and we
retained the appeal.
On appeal, Ingram argues the district court erred by (1) denying
his motion to suppress because the inventory searched violated the
United States and Iowa Constitutions and (2) finding there was sufficient
evidence that he knowingly possessed a controlled substance. Ingram
also argues he received ineffective assistance of counsel when his trial
counsel failed to challenge the admissibility of the results of the field
drug test. Because we hold that Ingram’s motion to suppress should
have been granted, we do not reach the other issues.
II. Standard of Review.
We review the denial of a motion to suppress on constitutional
grounds de novo. State v. Wilkes, 756 N.W.2d 838, 841 (Iowa 2008);
State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003).
III. Iowa vs. United States Constitution.
This case involves a challenge to a warrantless inventory search
and seizure of an automobile under the search and seizure provisions of
the Iowa and United States Constitutions. At the outset, it is important
to emphasize that this court is the ultimate arbiter of the meaning of the
search and seizure clause of article I, section 8 of the Iowa Constitution,
while the United States Supreme Court has the final say in interpreting
the search and seizure provision of the Fourth Amendment to the United
States Constitution.
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The Fourth Amendment provides, “The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. Const.
Amend. IV. Article I, section 8 of the Iowa Constitution requires that
“[t]he right of the people to be secure in their persons, houses, papers
and effects, against unreasonable seizures and searches shall not be
violated.” Iowa Const. art. I, § 8.
Although the Iowa and United States Constitutions have similarly
worded search and seizure provisions, that does not mean the two
regimes and the cases under them may be conflated. We jealously
reserve the right under our state constitutional provisions to reach
results different from current United States Supreme Court precedent
under parallel provisions. See, e.g., Zaber v. City of Dubuque, 789
N.W.2d 634, 654 (Iowa 2010); Wilkes, 756 N.W.2d at 842 n.1; Kingsway
Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa 2006). As has
been noted by other state courts before us, it would amount to
malpractice for lawyers not to understand the potential for an
independent state court interpretation under the state constitution that
is more protective of individual rights. State v. Lowry, 667 P.2d 996,
1013 (Or. 1983) (en banc) (Jones, J., concurring specially);
Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa. Super. Ct. 1998); State
v. Jewett, 500 A.2d 233, 234 (Vt. 1985); see also State v. Baldon, 829
N.W.2d 785, 816 (Iowa 2013) (Appel, J., concurring specially). The
caselaw and law commentaries now groan with the volume and weight of
ample materials for lawyers to construct independent state constitutional
law varying from applicable federal precedent. See State v. Short, 851
N.W.2d 474, 489–91 (Iowa 2014); State v. Ochoa, 792 N.W.2d 260, 264–
65 & nn.2–3 (Iowa 2010).
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The growth of independent state constitutional law is important in
the search and seizure context. Unlike the decisions of the United States
Supreme Court in recent years, which generally have sought to minimize
the scope of individual protection under the Fourth Amendment, our
recent caselaw under the search and seizure provision of the Iowa
Constitution has emphasized the robust character of its protections.
See, e.g., State v. Coleman, 890 N.W.2d 284, 299 (Iowa 2017); State v.
Gaskins, 866 N.W.2d 1, 6–7 (Iowa 2015); Short, 851 N.W.2d at 482–85;
Baldon, 829 N.W.2d at 833–34; Ochoa, 792 N.W.2d at 274. We have
repeatedly declined to follow the approach of the United States Supreme
Court in its interpretation of what one commentator has referred to as an
ever-shrinking Fourth Amendment. See Gaskins, 866 N.W.2d at 12–13;
Short, 851 N.W.2d at 506; Baldon, 829 N.W.2d at 803 (majority opinion);
Ochoa, 792 N.W.2d at 291; see generally Silas J. Wasserstrom, The
Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257 (1984).
In this case, Ingram raises his challenge under the search and
seizure provisions of both the Fourth Amendment of the United States
Constitution and article I, section 8 of the Iowa Constitution. Ingram’s
argument under the United States Constitution cites to federal cases that
generally provide warrantless inventory searches of automobiles are
permissible, if they are conducted pursuant to policies adopted by law
enforcement which govern the decision to impound the vehicle and the
nature and scope of any subsequent search. See Florida v. Wells, 495
U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990); United States v. Kennedy, 427
F.3d 1136, 1144 (8th Cir. 2005).
The challenge raised by Ingram under the search and seizure
provision of article I, section 8 of the Iowa Constitution has different
dimensions. Ingram notes a number of state courts have rejected the
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two-pronged policy approach of the United States Supreme Court in favor
of a more restrictive approach that sharply limits warrantless searches
and seizures of automobiles. See, e.g., State v. Daniel, 589 P.2d 408,
417–18 (Alaska 1979); State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct.
App. 2007); State v. Mangold, 414 A.2d 1312, 1318 (N.J. 1980); State v.
Hite, 338 P.3d 803, 809 (Or. Ct. App. 2014).
When a party raises claims under both the Federal and State
Constitutions, this court has generally held we retain the discretion
whether to proceed to analyze the case in the first instance under the
State or Federal Constitution. State v. Pals, 805 N.W.2d 767, 772 (Iowa
2011). In contrast, some states adopt a primary-state-law approach to
dual constitutional claims, where the court will almost or mostly always
consider state constitutional claims before moving on to consider federal
constitutional claims. See State v. Kono, 152 A.3d 1, 27 (Conn. 2016)
(explaining when federal law is unclear or defendant not entitled to relief
thereunder, court will consider state constitutional claim first); Malyon v.
Pierce County, 935 P.2d 1272, 1277 (Wash. 1997) (en banc) (stating when
the issue is adequately briefed, court will analyze the state constitutional
issue first); see generally Eric M. Hartmann, Note, Preservation, Primacy,
and Process: A More Consistent Approach to State Constitutional Law, 102
Iowa L. Rev. 2265, 2282 (2017).
Although the primary approach has attractive features, it also has
problems. Notwithstanding the caselaw developing independent state
constitutional law, trial court records often reveal counsel had not raised
an independent state constitutional argument at all. When this occurs,
appellate counsel must advance an ineffective-assistance-of-counsel
claim to preserve the issue. When a double-barreled preservation
problem occurs, namely, where the state constitutional issue is not
8
raised in the district court and the failure to do so is not presented as an
ineffective-assistance-of-counsel claim on appeal, we decline to reach the
state constitutional issues. See State v. Prusha, 874 N.W.2d 627, 629–30
(Iowa 2016).
Minimally better, counsel sometimes have merely added a citation
to article I, section 8 of the Iowa Constitution but then generally adopted
federal caselaw in describing the claim. Where state constitutional law
claims have been minimally preserved in this fashion, we may, in our
discretion, decide the case based on potentially dispositive federal
constitutional grounds and save our state constitutional interpretation
for another day. In the alternative, we may apply the federal standards
in a fashion more stringent than under federal caselaw. See Pals, 805
N.W.2d at 772. Given the inconsistent presentation of state
constitutional claims in our cases, we have so far declined to adopt a
primary approach that requires us to consider and resolve state
constitutional claims prior to addressing federal constitutional claims.
Baldon, 829 N.W.2d at 821–22 (Appel, J., concurring specially).
In this case, however, Ingram raised the Iowa constitutional issue
in the district court. In his appellate briefing, Ingram has specifically
urged us to follow a different approach to warrantless inventory searches
under the Iowa Constitution than has been employed by recent cases of
the United States Supreme Court and, to the extent the claim was not
preserved in the district court, has raised an ineffective-assistance claim.
We will proceed to consider the state constitutional issues.
IV. Warrantless Inventory Searches and Seizures of
Automobiles Under Article I, Section 8 of the Iowa Constitution.
A. Overview of Constitutional Choices.
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1. Introduction. Constitutional interpretation of open-textured
provisions of a state constitution is always about choice. See Todd E.
Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 124
(2011). Judicial development of open-textured constitutional provisions
is not a mathematical exercise, inexorably leading to a provable answer.
See Gompers v. United States, 233 U.S. 604, 610, 34 S. Ct. 693, 695
(1914) (“But the provisions of the Constitution are not mathematical
formulas having their essence in their form; they are organic, living
institutions transplanted from English soil.”), disapproved of on other
grounds by Bloom v. Illinois, 391 U.S. 194, 211, 88 S. Ct. 1477, 1487
(1968). As judges, in interpreting open-textured provisions of the Iowa
Constitution, it is our duty to select from possible plausible alternative
approaches the best approach to reflect the important constitutional
values underlying the text. State constitutional law is not about proofs,
but about informed choices.
In order to consider the proper framework for analyzing the validity
of warrantless inventory searches and seizures involving automobiles
under article I, section 8 of the Iowa Constitution, it is helpful to lay out
the various constitutional choices made by the United States Supreme
Court and the courts of other states under state constitutional search
and seizure provisions. The constitutional choices made by the United
States Supreme Court and other state courts are, of course, not binding
upon us, but they may broaden our constitutional perspectives, may
provide us with helpful insights, and may help guide the ultimate
resolution of the Iowa constitutional issue before us. With respect to the
cases of the United States Supreme Court, we must be attentive to
Justice Harlan’s often-quoted observation that because of federalism
concerns, the Supreme Court may underenforce constitutional norms in
10
its interpretation of federal constitutional provisions when they are
applied against the states, Ker v. California, 374 U.S. 23, 44, 83 S. Ct.
1623, 1645–46 (1963) (Harlan, J., concurring), and to the equally often-
quoted and somewhat sheepish observation by the Supreme Court that
states are free to adopt approaches more protective of liberty under their
state constitutions, Bustop, Inc. v. Board of Education of Los Angeles, 439
U.S. 1380, 1382, 99 S. Ct. 40, 41 (1978). In short, we look to the
decisions of other courts, including the decisions of the United States
Supreme Court, not because they are authoritative, but in the hope their
logic and rationales may be persuasive. Ochoa, 792 N.W.2d at 267;
Kingsway Cathedral, 711 N.W.2d at 9.
2. Approach to warrantless inventory searches and seizures
involving automobiles prior to recent United States Supreme Court cases.
We begin with a brief review of state and federal cases prior to recent
United States Supreme Court cases related to warrantless inventory
searches and seizures of automobiles. As will be seen below, the cases
are rich and varied.
For example, a leading early state court case is Mozzetti v. Superior
Court, 484 P.2d 84 (Cal. 1971) (en banc). The Mozzetti court began by
discussing the privacy interests involved in searches of automobiles. Id.
at 88. According to the court,
It seems undeniable that a routine police inventory of
the contents of an automobile involves a substantial invasion
into the privacy of the vehicle owner. Regardless of
professed benevolent purposes and euphemistic explication,
an inventory search involves a thorough exploration by the
police into the private property of an individual.
Id.
In analyzing the government’s interest in a warrantless inventory
search of an automobile, the Mozzetti court observed, “[I]tems of value
11
left in an automobile to be stored by the police may be adequately
protected merely by rolling up the windows, locking the vehicle doors and
returning the keys to the owner.” Id. at 89. Turning to the issue of
protecting the defendant or the police against theft or tort claims, the
court noted if the article was either stolen before the inventory or
perhaps innocently omitted when the inventory was taken, the inventory
documentation would be of little use. Id. at 89–90; see also People v.
Nagel, 95 Cal. Rptr. 129, 133 (Ct. App. 1971) (holding warrantless
inventory search of impounded car after red light violation invalid, as
there was no apparent reason why driver could not have driven vehicle to
nearby place for safekeeping); Virgil v. Super. Ct., 73 Cal. Rptr. 793, 795
(Ct. App. 1968) (holding warrantless inventory search of impounded car
invalid since there was no reason why passengers in the car could not
have taken charge of the vehicle and driver was not consulted with
respect to his automobile); Charles E. Moylan, Jr., The Inventory Search
of an Automobile: A Willing Suspension of Disbelief, 5 U. Balt. L. Rev. 203,
216–20 (1976) [hereinafter Moylan].
The Mozzetti court’s skepticism about the efficacy of an inventory
search protecting police against false claims was repeated by an Arizona
court of appeals in In re One 1965 Econoline, 495 P.2d 504, 508 (Ariz. Ct.
App. 1972), rev’d, 511 P.2d 168 (Ariz. 1973) (en banc). The Arizona
appellate court observed,
We fail to see how the taking of an inventory will
insulate the police against false accusations of theft and
assure the property owner that his property will not be
taken. Unscrupulous persons who desire to steal articles
will simply not list them on the inventory. Owners who wish
to assert spurious claims against law enforcement officers or
the garage owners can simply claim that the officers did not
list them on the inventory.
Id. at 508–09; see Moylan, 5 Balt. L. Rev. at 217–18.
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Some early state court cases held law enforcement must explore
the possibility of making alternate arrangements for a vehicle with an
owner or driver before impoundment occurs. See, e.g., Miller v. State,
403 So. 2d 1307, 1314 (Fla. 1981) (analyzing search under Fourth
Amendment and search and seizure provisions of Florida Constitution),
overruled by State v. Wells, 539 So. 2d 464, 469 (Fla. 1989); Strobhert v.
State, 301 S.E.2d 681, 682 (Ga. 1983) (discussing search and seizure
generally, not indicating specific constitutional provisions); State v.
Fortune, 689 P.2d 1196, 1203 (Kan. 1984) (ruling under Fourth
Amendment and search and seizure provisions of Kansas Constitution).
There are also a number of early state court cases holding
containers may not be opened pursuant to a warrantless inventory
search. For example, the Alaska Supreme Court held a warrantless
search of luggage, containers, or packages in an automobile violated the
search and seizure provisions of the Alaska Constitution. Daniel, 589
P.2d at 417–18. Similarly, the Alaska Supreme Court also held closed
containers taken from a person before incarceration may not be further
opened or searched except pursuant to a warrant unless there is a
recognized exception to the warrant requirement. Reeves v. State, 599
P.2d 727, 735–36 (Alaska 1979). A number of other state cases similarly
held warrantless inventory searches of closed containers invalid under
the Fourth Amendment and/or state constitutional search and seizure
provisions. See State v. Gwinn, 301 A.2d 291, 296 (Del. 1972) (finding
search of satchel during warrantless inventory of automobile not
necessary for protection of owner and risk satchel might contain
explosives or dangerous substance too conjectural to justify search
under Fourth Amendment); People v. Dennison, 378 N.E.2d 220, 224 (Ill.
App. Ct. 1978) (holding warrantless inventory search may not extend to
13
toolbox under Fourth Amendment); State v. Jewell, 338 So. 2d 633, 639–
40 (La. 1976) (holding under Fourth Amendment and search and seizure
provisions of Louisiana Constitution, warrantless search of an over-the-
counter pill bottle was not conducted pursuant to a legitimate inventory
search, but even if it had been, a true inventory search would never
involve examining contents of a pill bottle); State v. Downes, 591 P.2d
1352, 1354 (Or. 1979) (en banc) (holding exigent circumstances must
exist to justify warrantless inventory search of closed container under
Fourth Amendment); State v. Prober, 297 N.W.2d 1, 12 (Wis. 1980)
(search of purse pursuant to warrantless inventory search unlawful
under Fourth Amendment and search and seizure provisions of
Wisconsin Constitution), overruled by State v. Weide, 455 N.W.2d 899,
904 (Wis. 1990) (holding Colorado v. Bertine, 479 U.S. 367, 107 S. Ct.
738 (1987), requires rejection of Prober in Fourth Amendment analysis
and declining to adopt independent standard under Wisconsin
Constitution).
There are early warrantless inventory search and seizure cases,
however, that provided more leeway to law enforcement. For example, in
Cabbler v. Commonwealth, the Virginia Supreme Court upheld a
warrantless inventory search of an automobile under the Fourth
Amendment pursuant to a police department policy to protect the
property of an arrested citizen. 184 S.E.2d 781, 783 (Va. 1971). In
Warrix v. State, the Wisconsin Supreme Court held a warrantless
inventory search of a car in police custody was proper under the Fourth
Amendment in order to protect police from claims of theft of personal
property. 184 N.W.2d 189, 194 (Wis. 1971). The Minnesota Supreme
Court held a warrantless inventory search pursuant to a standard
procedure was a reasonable measure under the Fourth Amendment to
14
protect the car and its contents after it was impounded by the police.
City of St. Paul v. Myles, 218 N.W.2d 697, 699, 701 (Minn. 1974); see
also State v. Tully, 348 A.2d 603, 609–10 (Conn. 1974) (holding
warrantless search of motor vehicle was acceptable under the Fourth
Amendment); People v. Sullivan, 272 N.E.2d 464, 469 (N.Y. 1971)
(holding warrantless search was reasonable within the Fourth
Amendment); State v. Criscola, 444 P.2d 517, 519–20 (Utah 1968)
(upholding warrantless search under the Fourth Amendment). As will be
seen below, cases like Cabbler foreshadowed the later approach of the
United States Supreme Court to warrantless inventory search and
seizure involving automobiles.
3. Approach to warrantless inventory searches and seizures
involving automobiles in recent cases of the United States Supreme Court.
In recent years, the United States Supreme Court has narrowly
construed the search and seizure protections contained in the Fourth
Amendment. In particular, it has placed less emphasis on the warrant
requirement and embarked on an ever-increasing expansion of
exceptions to the warrant requirement. While the traditional touchstone
of Fourth Amendment law under prior Supreme Court cases was the
warrant requirement, see, e.g., Coolidge v. New Hampshire, 403 U.S. 443,
454–55, 91 S. Ct. 2022, 2032 (1971); Katz v. United States, 389 U.S. 347,
356–57, 88 S. Ct. 507, 514 (1967); Jones v. United States, 357 U.S. 493,
499, 78 S. Ct. 1253, 1257 (1958), the new innovative touchstone under
the more recent Supreme Court cases is a free-floating and open-ended
concept of “reasonableness” that is unhinged from the warrant
requirement expressly contained in the Fourth Amendment, see, e.g.,
Maryland v. King, 569 U.S. 435, 448, 133 S. Ct. 1958, 1970 (2013);
15
Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 1916 (1995);
O’Connor v. Ortega, 480 U.S. 709, 728–29, 107 S. Ct. 1492, 1503 (1987).
The field of warrantless inventory search and seizure has been no
exception to this general revisionist trend away from the traditional
Fourth Amendment warrant requirement. See Silas J. Wasserstrom, The
Court’s Turn Toward a General Reasonableness Interpretation of the
Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 148 (1989). The
recent approach of the United States Supreme Court is to allow
warrantless inventory searches and seizures of automobiles by law
enforcement authorities, provided they are conducted pursuant to
generally applicable local policy requirements that are “reasonable.”
Bertine, 479 U.S. at 371–72, 107 S. Ct. at 741.
Under the United States Supreme Court cases, the nature and
scope of the warrantless search must be conducted pursuant to a
standardized local policy. See Wells, 495 U.S. at 4, 110 S. Ct. at 1635;
Bertine, 479 U.S. at 376, 107 S. Ct. at 743 (Blackmun, J., concurring);
South Dakota v. Opperman, 428 U.S. 364, 383, 96 S. Ct. 3092, 3104
(1976) (Powell, concurring). If the warrantless impoundment of the
vehicle and the warrantless search of the vehicle are authorized by
reasonable local policy, the warrantless inventory search passes
constitutional muster. See Wells, 495 U.S. at 4, 110 S. Ct. at 1635.
Under the Supreme Court approach, there is no requirement that local
police inventory policies use the least intrusive means to advance the
goals of law enforcement. Illinois v. Lafayette, 462 U.S. 640, 647, 103
S. Ct. 2605, 2610 (1983). A warrantless inventory search and seizure
might be invalid if the accused can show the government action was “in
bad faith or for the sole purpose of investigation,” a very high bar.
Bertine, 479 U.S. at 372, 107 S. Ct. at 741 (majority opinion).
16
Because of its emphasis on local policy determined by law
enforcement, constitutionally permissive warrantless searches pursuant
to an inventory process may vary from jurisdiction to jurisdiction. It
allows local law enforcement culture to be brought to bear in expanding
or contracting the scope of Fourth Amendment rights through adoption
of broad or narrow warrantless inventory search and seizure policies.
Thus, under the Fourth Amendment, whether a container may be
searched as part of a warrantless inventory process may turn on the
policies of the jurisdiction where the search occurred. Plainly, the
Supreme Court’s approach accommodates, and was no doubt animated
by, federalism concerns.
Under the federal approach, local law enforcement, and not
independent and impartial judges, may set the contours of the
substantive protections for liberty under the Fourth Amendment in the
field of warrantless inventory searches through the crafting of local
policy. This empowerment of local law enforcement to determine the
substance of Fourth Amendment protections in the context of
warrantless inventory searches and seizures of automobiles is rich with
irony, as the Fourth Amendment was explicitly designed as a bulwark to
restrain law enforcement in the context of searches and seizures. Under
the United States Supreme Court precedent, local law enforcement is
authorized to restrict itself, a process unlikely to provide robust
protections to persons drawn into the warrantless inventory search and
seizure net and more likely to reflect law enforcement convenience.
The United States Supreme Court also has not required a
warrantless inventory search and seizure policy be in writing, but instead
the policy may be established by custom and practice. See Bertine, 479
U.S. at 373 n.5, 107 S. Ct. at 742 n.5 (discussing testimony of other
17
police officer regarding the vehicle inventory procedures); United States v.
Betterton, 417 F.3d 826, 830 (8th Cir. 2005) (“While a written policy may
be preferable, testimony can be sufficient to establish police
impoundment procedures.”). When policies are not in writing, there may
be evidentiary difficulties regarding whether a policy is, in fact, in place,
and if so, what exactly is the policy.
There is irony here, too, in the lack of a requirement that the
warrantless inventory search policy be in writing. One of the
requirements of a traditional Fourth Amendment law is that a warrant be
in writing. The writing requirement ensures there is no dispute
regarding the showing of probable cause made by law enforcement
officers or regarding the scope of the warrant itself. It prevents after-the-
fact justifications by law enforcement. The notion that an ex ante writing
prevents post hoc judgments has been an important part of search and
seizure law for a long time. See, e.g., United States v. Sharpe, 470 U.S.
675, 694, 105 S. Ct. 1568, 1580 (1985); United States v. Martinez-Fuerte,
428 U.S. 543, 565, 96 S. Ct. 3074, 3086 (1976); Opperman, 428 U.S. at
383, 96 S. Ct. at 3104; United States v. Cazares-Olivas, 515 F.3d 726,
729 (7th Cir. 2008). The United States Supreme Court’s approach to
unwritten policies in the field of warrantless inventory searches lacks
these important disciplining features.
In considering whether to adopt the evolving enabling of
warrantless inventory searches and seizures of automobiles espoused by
the United States Supreme Court into our interpretation of article I,
section 8 of the Iowa Constitution, it is important to recognize the United
States Supreme Court’s approach in its warrantless inventory search and
seizure caselaw has been highly contested. The nature and scope of the
disputed law may be seen in an overview of the majorities and dissents in
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the warrantless inventory search and seizure cases. In several of the
United States Supreme Court warrantless inventory search cases, the
Court reversed decisions of state supreme courts limiting and regulating
warrantless inventory searches under the Fourth Amendment. See
Bertine, 479 U.S. at 376, 107 S. Ct. at 743; Lafayette, 462 U.S. at 648,
103 S. Ct. at 2610; Opperman, 428 U.S. at 376, 96 S. Ct. at 3100
(majority opinion). A more detailed look at the United States Supreme
Court opinions in the warrantless inventory search and seizure cases
illustrates some of the constitutional choices available to us in the
interpretation of article I, section 8 of the Iowa Constitution.
The first case laying the foundations for warrantless inventory
search and seizure, Cady v. Dombrowski, was a 5–4 decision. 413 U.S.
433, 450, 93 S. Ct. 2523, 2532 (1973). The owner of the vehicle, a police
officer, was unable to arrange to have the vehicle towed and stored, and
as a result, the police had it towed to a private garage. Id. at 446, 93
S. Ct. at 2530. The police searched the vehicle without a warrant
pursuant to standard police department procedure, apparently to retrieve
Dombrowski’s service revolver, which was believed to be within the
vehicle. Id. at 437, 93 S. Ct. at 2526. When searching for the weapon,
police uncovered evidence in the vehicle incriminating Dombrowski in a
murder. Id. The district court denied the motion to suppress, but the
Seventh Circuit reversed. Id. at 434, 93 S. Ct. at 2525. A majority of the
United States Supreme Court upheld the warrantless search as
“reasonable” under the Fourth Amendment because the search was not
part of a criminal investigation but was conducted pursuant to local
police procedures for “community caretaking purposes.” Id. at 447–48,
93 S. Ct. at 2531.
19
Writing for four justices, Justice Brennan dissented. Id. at 450, 93
S. Ct. at 2532 (Brennan, J., dissenting). He noted the “reasonableness”
clause of the Fourth Amendment is “shaped by the warrant clause.” Id.
He rejected the majority’s “fine-line” distinction between police intrusions
for criminal and investigative functions. Id. at 453, 93 S. Ct. at 2534.
Justice Brennan noted, “[T]he fact that the professed purpose of the
contested search was to protect the public safety rather than to gain
incriminating evidence does not of itself eliminate the necessity for
compliance with the warrant requirement.” Id. at 453–54, 93 S. Ct. at
2534. For Justice Brennan and the other dissenters, the formal labeling
of a search and seizure as a criminal investigation or something else was
of little significance: the resulting government intrusion into the privacy
interests is the same. See id.
The United States Supreme Court was also highly divided in the
next warrantless inventory search and seizure case. Opperman, 428 U.S.
364, 96 S. Ct. 3092. In Opperman, the majority of the court upheld a
warrantless inventory search of a locked automobile that had been
lawfully impounded for failure to pay parking tickets. Id. at 375–76, 96
S. Ct. at 3100. The car in question was towed to the city impound lot for
parking violations. Id. at 366, 96 S. Ct. at 3095. A watch and other
personal items were in the interior of the locked car but in plain view. Id.
The police unlocked the car and conducted a warrantless inventory
search, including opening an unlocked glove compartment where
marijuana was discovered. Id. The owner of the car was subsequently
charged with possession of marijuana and sought to suppress the
evidence obtained by police in the search of the vehicle. Id. at 366, 96
S. Ct. at 3095–96. The South Dakota Supreme Court had found the
search invalid under the Fourth Amendment because the warrantless
20
search was not incident to a lawful arrest, based on probable cause to
believe the vehicle contained contraband, justified by the nature of the
police custody of the vehicle, or based on exigent circumstances. State v.
Opperman, 228 N.W.2d 152, 158 (S.D. 1975), rev’d, 428 U.S. 364, 96
S. Ct. 3092.
A five-member majority of the United States Supreme Court upheld
the warrantless inventory search under the Fourth Amendment.
Opperman, 428 U.S. at 376, 96 S. Ct. at 3100. The majority opinion by
Chief Justice Burger emphasized automobiles are entitled to less
protection than the home under the Fourth Amendment because of the
mobility of a car, the lessened expectation of privacy in a car compared to
the home, and the pervasive and continuing government regulation and
control of cars. Id. at 367–68, 96 S. Ct. at 3096. The majority explained
that conducting a routine inventory after impoundment promoted three
distinct needs: protecting the owner’s property, protecting the police
against claims or disputes over lost or stolen property, and protecting the
police from potential danger. Id. at 369–70, 96 S. Ct. at 3097. In light of
these purposes, the majority concluded, inventories pursuant to
standard police procedures are “reasonable” under the Fourth
Amendment. Id. at 372, 96 S. Ct. at 3098–99.
Writing for three justices, Justice Marshall dissented. Id. at 384,
96 S. Ct. at 3105 (Marshall, J., dissenting); see also id. at 396, 96 S. Ct.
at 3110 (White, J., dissenting). The dissent emphasized the warrantless
inventory search was conducted of a closed glove compartment in a
locked vehicle. Id. at 384–85, 96 S. Ct. at 3105 (Marshall, J., dissenting).
While the dissent noted the court had occasionally distinguished
automobiles from homes for search and seizure purposes, the distinction
was based in part on the mobility of the car, a consideration not present
21
when the car is locked and impounded. Id. at 386, 96 S. Ct. at 3105–06.
Further, the state’s regulatory interest in the operation of automobiles is
not implicated when the vehicle is immobilized in a police impoundment.
Id. at 387, 96 S. Ct. at 3106.
The minority then considered the three justifications of the
warrantless search presented in the majority opinion. Id. at 389, 96
S. Ct. at 3106–07. With respect to safety, the minority, citing a
concurrence of Justice Powell, noted ordinarily “there is little danger
associated with impounding unsearched automobiles,” and in that case,
there was no particularized concern over safety such as in Terry v. Ohio,
392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). Opperman, 428 U.S. at 390,
96 S. Ct. at 3107 (quoting id. at 377, 96 S. Ct. at 3101 (Powell, J.,
concurring)). On protecting the police from lost property claims, Justice
Marshall noted the majority ignored the South Dakota Supreme Court
state law interpretation that police, as “gratuitous depositors,” are
absolved “from any obligation beyond inventorying objects in plain view
and locking the car.” Id. at 391, 96 S. Ct. at 3108 (Marshall, J.,
dissenting). Further, again citing Justice Powell’s concurring opinion,
the minority doubted that an inventory would “work significantly to
minimize the frustrations of false claims.” Id. Finally, with respect to
conducting an inventory for the owner’s benefit, Justice Marshall noted
law enforcement cannot assume consent. Id. at 392, 96 S. Ct. at 3108.
According to Justice Marshall, a warrantless inventory search without
consent may be conducted only upon a showing of a specific reason for
the search and only after “the exhaustion and failure of reasonable
efforts . . . to identity and reach the owner of the property in order to
facilitate alternative means of security.” Id. at 394, 96 S. Ct. at 3109.
22
Seven years after Opperman, the United States Supreme Court
considered the validity of a warrantless preincarceration inventory search
of a shoulder bag in Lafayette, 462 U.S. at 641–42, 103 S. Ct. at 2607.
In Lafayette, police arrested the accused for disturbing the peace. Id. at
641, 103 S. Ct. at 2607. The Lafayette Court emphasized the practical
necessities of jailhouse administration as supporting the search. Id. at
643–44, 103 S. Ct. at 2608. The Court emphasized the government’s
interest in preventing theft and false claims against employees and
preserving the security of the stationhouse. Id. at 648, 103 S. Ct. at
2610. While the Illinois court found the search invalid because the
government interest could have been advanced by the less intrusive
means of sealing the container within another container and storing it in
a secure locker, People v. Lafayette, 425 N.E.2d 1383, 1386 (Ill. Ct. App.
1981), the Court rejected the less-intrusive-means rationale. Lafayette,
462 U.S. at 648, 103 S. Ct. at 2610. The Lafayette Court emphasized
the need for a “single familiar standard” in determining what may be
searched and, to the Lafayette Court, that meant containers, bags,
wallets—indeed everything. Id. at 648, 103 S. Ct. at 2610–11 (quoting
New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2860, 2863 (1981)).
Justices Marshall and Brennan concurred, but stressed the
government’s strong interest in jailhouse security when a person is being
admitted to the facility. Id. at 649, 103 S. Ct. at 2611 (Marshall, J.,
concurring).
The United States Supreme Court next considered a warrantless
inventory search of an automobile in Bertine, 479 U.S. at 369–70, 107
S. Ct. at 740. The Bertine Court considered a police search of a
backpack after the defendant was arrested for driving under the
influence of alcohol and a tow truck was called to impound the vehicle.
23
Id. at 368–69, 107 S. Ct. at 739. The search of the backpack revealed
controlled substances, cocaine paraphernalia, and a large amount of
cash. Id. at 369, 107 S. Ct. at 739. The Colorado Supreme Court upheld
a district court decision granting the motion to suppress. Id. at 370, 107
S. Ct. at 740.
The majority in Bertine reversed the Colorado Supreme Court and
upheld the warrantless inventory search. Id. at 376, 107 S. Ct. at 743.
The main opinion by Chief Justice Rehnquist recited the three rationales
of warrantless inventory searches from Opperman. Id. at 372–73, 107
S. Ct. at 741–42. The majority rejected the approach of the Colorado
Supreme Court, which held the search “was unreasonable because [the
vehicle] was towed to a secured, lighted facility and because Bertine
himself could have been offered the opportunity to make other
arrangements for [the vehicle].” Id. at 373–74, 107 S. Ct. at 742. The
Bertine Court also rejected the Colorado Supreme Court’s balancing of
the individual’s privacy interest against the needs of law enforcement.
Id. at 374–75, 107 S. Ct. at 742–43. According to the Court, there was a
need for a single, familiar standard for police making the decision with
limited time and expertise. Id. at 375, 107 S. Ct. at 743. The Court
noted, however, a warrantless inventory search or seizure might be
invalid if the owner or driver could show that the action was “in bad faith
or for the sole purpose of investigation.” Id. at 372, 107 S. Ct. at 742. 1
A concurring opinion by Justice Blackmun, joined by Justices
Powell and O’Connor, emphasized the opening of closed containers in a
warrantless inventory search is acceptable only if conducted pursuant to
1But see United States v. Judge, 864 F.2d 1144, 1147 n.5 (5th Cir. 1989)
(observing there are “mixed motives in the vast majority of inventory searches” and
noting the difficulty of establishing bad faith).
24
standardized police procedures. Id. at 376, 107 S. Ct. at 743 (Blackmun,
J., concurring). According to the concurring opinion, standardized
procedures are required because police should not be vested “with
discretion to determine the scope of the inventory search.” Id.
Justice Marshall, joined by Justice Brennan, dissented. Id. at 377,
107 S. Ct. at 744 (Marshall, J., dissenting). While the majority
emphasized the lack of discretion in implementing the inventory
procedures, Justice Marshall noted the procedures themselves, in fact,
vested substantial discretion in the officers to choose whether to park
and lock the vehicle or impound it. Id. at 378–79, 107 S. Ct. at 744–45.
Justice Marshall reprised the argument from earlier dissents that the
alleged interests supporting warrantless inventory searches were not
substantial. Id. at 382–85, 107 S. Ct. at 746–48. As to preservation of
the owner’s property, Justice Marshall emphasized in this case the owner
was available to make other arrangements, yet the police made no effort
to determine whether he wanted them to “safeguard” his property. Id. at
385, 107 S. Ct. at 748. Justice Marshall recognized Lafayette upheld a
stationhouse inventory of a bag, but the case was justified by the
compelling government interests unique to the stationhouse,
preincarceration context where jail security is paramount. Id. at 385–86,
107 S. Ct. at 748–49.
The final warrantless inventory search and seizure case in the line
of cases is Wells, 495 U.S. 1, 110 S. Ct. 1632. In Wells, a splintered
Court considered a case in which police searched the trunk and a
suitcase within it, after arresting the driver for driving while intoxicated.
Id. at 2, 110 S. Ct. at 1634. The majority of the Supreme Court held the
search offended the Fourth Amendment because law enforcement
involved in the search had no policy whatsoever “with respect to the
25
opening of closed containers encountered during an inventory search.”
Id. at 4–5, 110 S. Ct. at 1635. In dicta, however, the majority opinion
suggested a law enforcement policy might allow law enforcement the
discretion to determine whether to open closed containers in seized
automobiles. Id. at 4, 110 S. Ct. at 1635.
Justice Brennan, joined by Justice Marshall, concurred. Id. at 5,
110 S. Ct. at 1635 (Brennan, J., concurring). Justice Brennan
emphasized that under Opperman the procedures of law enforcement
must limit the discretion of police. Wells, 495 U.S. at 8, 110 S. Ct. at
1637. Justice Brennan stressed that opening a closed container is a
great intrusion into the privacy of the owner when the container is found
in an automobile. Id. at 9, 110 S. Ct. at 1638. Justice Brennan repeated
his view espoused in Bertine that absent consent or an emergency, police
may not open a closed container found during an inventory search of an
automobile. Id. at 8–9, 110 S. Ct. at 1637–38.
The United States Supreme Court has not revisited the issue of
inventory searches since Wells. There is reason to think some of the
rationale for the Supreme Court’s inventory search approach has been
undermined by later decisions. In Arizona v. Gant, the Court held where
suspects are detained and away from a motor vehicle, officer safety is not
a realistic basis for a warrantless search of the passenger compartment
of an automobile. 556 U.S. 332, 344, 129 S. Ct. 1710, 1719 (2009). In
light of Gant, it is unclear whether the Supreme Court would continue to
find safety supports a warrantless search of a car that is securely
impounded. See Jennifer Kirby-McLemore, Comment, Finishing What
Gant Started: Protecting Motorists’ Privacy Rights by Restricting Vehicle
Impoundments and Inventory Searches, 84 Miss. L.J. 179, 196–97 (2014).
26
As can been seen by the above cases, the question of the nature
and scope of permitted warrantless inventory searches and seizures
involving automobiles has been a highly contested issue. In three of the
cases, the United States Supreme Court reversed state appellate
decisions from Colorado, Illinois, and South Dakota. Bertine, 479 U.S. at
376, 107 S. Ct. at 743 (majority opinion); Lafayette, 462 U.S. at 649, 103
S. Ct. at 2611 (majority opinion); Opperman, 428 U.S. at 376, 96 S. Ct. at
3100–01 (majority opinion). The majority opinions in Bertine and
Opperman were highly contested and provoked vigorous dissents. In
construing our state constitutional provisions relating to search and
seizure, we are free to consider the persuasive power of the prior state
court opinions and the majority, concurring, and dissenting opinions in
the United States Supreme Court cases.
4. Post-Bertine alternative approaches of state supreme courts to
inventory searches. After Bertine, some state courts have followed
lockstep with the United States Supreme Court precedent in considering
warrantless inventory searches and seizures involving automobiles under
their state constitutions. See, e.g., People v. Parks, 370 P.3d 346, 351
(Colo. App. 2015) (“[T]he State and Federal constitutions are coextensive
in the context of inventory searches.”); Weide, 455 N.W.2d at 904 (“In
light of Bertine [prior caselaw rejecting inventory searches of closed
containers] is no longer a correct interpretation of state or federal
constitutional law, and we overrule [prior caselaw] to the extent that it
conflicts with Bertine.”); Johnson v. State, 137 P.3d 903, 908–09 (Wyo.
2006) (“Consonant with the Fourth Amendment, the opening of closed
containers during an inventory search is permissible if conducted in good
faith, pursuant to a standardized police policy, and as long as the search
is not a ruse for general rummaging for evidence of a crime.”).
27
Other state supreme courts, however, have chosen alternative
approaches reminiscent of state court cases prior to Bertine. Indeed, on
remand from the United States Supreme Court, the South Dakota
Supreme Court dug in its heels and adhered to its prior view that the
inventory search was unlawful under the South Dakota Constitution.
State v. Opperman, 247 N.W.2d 673, 675 (S.D. 1976). The South Dakota
Supreme Court noted “logic and a sound regard for the purposes of the
protection” of the search and seizure provision of the South Dakota
Constitution “warrant a higher standard of protection for the individual
. . . than the United States Supreme Court found necessary under the
Fourth Amendment.” Id. The South Dakota Supreme Court observed
that for a warrantless inventory search to be reasonable under the South
Dakota Constitution there must be “minimal interference” with the
individual’s protected rights. Id. (quoting United States v. Lawson, 487
F.2d 468, 475 (8th Cir. 1973)). The South Dakota Supreme Court
limited the warrantless inventory search under the search and seizure
provision of article VI, section 11 of the South Dakota Constitution to
articles within plain view. Id.
Appellate courts in the state of Washington have developed their
own independent state constitutional analysis of the validity of
warrantless inventory searches and seizures. In a pre-Bertine case, the
Washington Supreme Court held before warrantless impoundment
occurs pursuant to the police’s community caretaking function, the
police must first make an inquiry as to the availability of the owner or
the owner’s spouse or friends to move the vehicle under the Fourth
Amendment. State v. Williams, 689 P.2d 1065, 1070–71 (Wash. 1984)
(en banc). The Williams court also noted, “[I]t is doubtful that the police
could have conducted a routine inventory search without asking [the
28
defendant] if he wanted one done.” Id. at 1071. In another pre-Bertine
case, the Washington Supreme Court held a closed container could not
be opened pursuant to an inventory search, this time invoking both the
Fourth Amendment and the search and seizure provisions of the
Washington Constitution. State v. Houser, 622 P.2d 1218, 1226 (Wash.
1980) (en banc). After Bertine, the Washington courts have continued to
limit the scope of warrantless inventory searches and seizures under the
search and seizure provisions of the Washington Constitution, holding
when conducting an inventory, no closed, opaque containers should be
opened unless the container is designed to or likely to contain valuables.
State v. Wisdom, 349 P.3d 953, 965 (Wash. Ct. App. 2015). While
Washington state courts recognize warrantless inventory searches may
serve legitimate government interests, the courts have emphasized that
warrantless searches are not limitless and do not outweigh the privacy
interests of Washington citizens under the search and seizure provisions
of the Washington Constitution. State v. White, 958 P.2d 982, 987
(Wash. 1998). Further, the post-Bertine Washington Supreme Court has
suggested warrantless inventory searches should be consent-based with
the owner or driver able to refuse. Id. at 987 n.11.
Another post-Bertine state court approach to warrantless inventory
searches may be found in the Oregon case of Hite, 338 P.3d 803. Under
the Oregon court’s approach, property is to be listed in an inventory only
by its outward appearance. Id. at 809. Under the search and seizure
provisions of the Oregon Constitution, closed, opaque containers may not
be opened unless the container is designed or likely to contain valuables.
Id. Similarly, in State v. Atkinson, an Oregon appellate court expressly
departed from Opperman under the search and seizure provisions of the
Oregon Constitution in holding there was no need for a warrantless
29
inventory search of a vehicle that was in a locked shed where there was
no evidence of past thefts. 669 P.2d 343, 345–46 (Or. Ct. App. 1983) (en
banc), aff’d on other grounds, 668 P.2d 832, 838 (Or. 1984) (en banc).
The caselaw from Indiana is also instructive. Like Iowa precedent,
Indiana precedent requires the search and seizure provision of the
Indiana Constitution “be liberally construed in its application to
guarantee that people will not be subjected to unreasonable search and
seizure.” Lucas, 859 N.E.2d at 1251; see State v. Height, 117 Iowa 650,
657, 91 N.W. 935, 937 (1902) (stating Iowa constitutional rights should
be applied “in a broad and liberal spirit”). The Indiana appellate court
applied a “totality of the circumstances” test under its state constitution
to determine if the search was reasonable, an approach the United States
Supreme Court expressly declined to follow in Bertine. Compare Lucas,
859 N.E.2d at 1251, with Bertine, 479 U.S. at 375, 107 S. Ct. at 743
(majority opinion) (emphasizing when a search is underway, a “single
familiar standard is essential” as opposed to one that balances individual
interests in specific circumstances). The Indiana Supreme Court
determined opening a locked toolbox as part of an inventory search was
unreasonable under article I, section 11 of the Indiana Constitution.
Lucas, 859 N.E.2d at 1251.
There is authority in Texas that departs from the United States
Supreme Court’s approach to warrantless inventory searches of
automobiles. In Gords v. State, a post-Bertine Texas court of appeals
held there was no basis for impounding a vehicle that was parked in a
private lot and locked, where there were other people at the arrest site
who could have taken care of the vehicle and no contraband or visible
evidence of crime was in plain view. 824 S.W.2d 785, 788 (Tex. Crim.
App. 1992). The Texas court explicitly noted that Bertine was not
30
binding authority in the interpretation of the search and seizure
provisions of the Texas Constitution. Id. at 787.
Similarly, in Autran v. State, the Texas Court of Criminal Appeals
concluded a warrantless inventory of contents of a vehicle, including a
closed ice chest, a cardboard box, a shopping bag, and a closed plastic
key box, did not violate the Fourth Amendment. 887 S.W.2d 31, 35–36
(Tex. Crim. App. 1994) (en banc). Noting it was imperative the court
engage in an independent analysis under the search and seizure
provisions of the Texas Constitution, the Autran court concluded under
the Texas Constitution the owner or driver’s privacy interest in closed
containers is not overcome by the general policy considerations
underlying a warrantless inventory search of closed containers in an
automobile. Id. at 41–42. According to the Autran court, the state’s
interest in protecting the owner or driver’s property, as well as protecting
the police from danger and false claims of theft, may be satisfied by
recording the existence of, or describing and or photographing the
existence of, the closed or locked container. Id. at 42. The Autran court
refused to “presume the search of a closed container reasonable” under
the search and seizure provisions of the Texas Constitution “simply
because an officer followed established departmental policy.” Id.
Finally, cases from New Jersey also go in a different direction than
the United States Supreme Court. In State v. Slockbower, the New
Jersey Supreme Court held that before police impounded a vehicle, the
driver either must consent or be given a reasonable opportunity to make
other arrangements for custody of the vehicle. 397 A.2d 1050, 1051
(N.J. 1979). The approach in Slockbower was affirmed in Mangold, 414
A.2d at 1318. In Mangold, the New Jersey Supreme Court held that
before impounding a vehicle, the driver is entitled to an opportunity to
31
utilize available alternative means to safeguard his or her property. Id.
The Slockbower–Mangold reasoning has been applied in post-Bertine
cases in State v. One 1994 Ford Thunderbird, 793 A.2d 792, 801 (N.J.
Super. Ct. App. Div. 2002), and Blacknall v. Simonetti, 2010 WL 2089773
at *3 (N.J. Super. Ct. App. Div. 2010). See also State v. Robinson, 159
A.3d 373, 387 (N.J. 2017) (citing Slockbower and Mangold for the
standard of when an inventory search may be conducted under the New
Jersey Constitution).
Many of the cases departing from federal precedent cite or are
generally consistent with the Police Foundation’s Rule 603B of the 1974
Model Rules[:] Searches Seizures and Inventories of Motor Vehicles. Rule
603B provides the arresting officer should be required to advise the
arrested operator “that his vehicle will be taken to a police facility or
private storage facility for safekeeping unless he directs the officer to
dispose of it in some other lawful manner” and to tell the arrested
operator that the arresting officer will “comply with any reasonable
alternative disposition requested.” See 3 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 7.3(c), at 820 (5th ed.
2012) [hereinafter LaFave, Search and Seizure] (quoting Model Rules[:]
Searches Seizures and Inventories of Motor Vehicles (Project on Law Enf’t
Policy & Rulemaking 1974)).
5. Iowa Supreme Court’s approach to inventory searches. The
question of warrantless inventory searches and seizures involving
automobiles was considered thirty-five years ago in State v. Roth, 305
N.W.2d 501, 502 (Iowa 1981). In a divided opinion, the court in Roth
held that under the Fourth Amendment and article I, section 8 of the
Iowa Constitution, police may open a closed container such as a paper
bag but not a purse, suitcase, or briefcase that could be removed from
32
the vehicle and inventoried as a unit. Id. at 507–08. In a dissenting
opinion, Justice McCormick would have held the search of a paper bag
found in the truck was invalid under both the Fourth Amendment and
the Iowa Constitution. Id. at 510 (McCormick, J., dissenting). Notably,
the privacy protections in Roth went considerably further than the United
States Supreme Court ultimately afforded owners and drivers in Bertine.
Id. at 508 (majority opinion); Bertine, 479 U.S. at 375, 107 S. Ct. at 743.
The difference between a searchable paper bag and a closed container
not subject to search was not explored in depth. Id. at 508.
Three years later, another warrantless inventory case reached us
in State v. Kuster, 353 N.W.2d 428, 430 (Iowa 1984), overruled by State v.
Huisman, 544 N.W.2d 433, 440 (Iowa 1996). In Kuster, a Fourth
Amendment case, we held there must be a “showing [of] some reasonable
necessity” for the warrantless impoundment of an automobile. Id. at 432
(quoting State v. McDaniel, 383 A.2d 1174, 1179 (N.J. Super. Ct. App.
Div. 1978)). We noted “the vehicle was locked, legally parked, and it
presented no danger to the public.” Id. Further, we emphasized there
was no attempt “by the police to allow the defendant to provide for the
care of the vehicle and apparently no inquiry was made of him as to what
he wanted to have done with the vehicle.” Id. In short, prior to Bertine,
we adopted the view of a number of state courts, namely, that before a
warrantless impoundment occurs, there must be some risk if
impoundment does not occur and the driver or owner of the vehicle must
be given a chance to make other arrangements.
After the United States Supreme Court decided Bertine, we
considered a warrantless inventory search in Huisman, 544 N.W.2d 435.
In this case, police conducted a warrantless inventory search of a vehicle
in a motel parking lot. Id. The defendant challenged the warrantless
33
search under the Fourth Amendment. Id. at 436. In Huisman, we
recognized the United States Supreme Court in Bertine rejected a case-
by-case analysis of reasonable necessity of impoundment in favor of a
broader approach that a warrantless inventory search and seizure may
be conducted pursuant to generally applicable police policy. Id. at 437.
Although our view in Kuster of the requirements of the Fourth
Amendment was different from the Bertine decision, we were obliged to
abandon Kuster and follow Bertine by operation of the Supremacy Clause
of the United States Constitution. Id. at 438–39. While we might have
stood our ground as enunciated in Kuster under article I, section 8 of the
Iowa Constitution, no state constitutional claim was raised in Huisman.
Id. at 435.
Similarly, in State v. Aderholdt, we considered a Fourth
Amendment challenge to a warrantless inventory search where the initial
stop was made because of a seatbelt violation and excessively tinted
windows. 545 N.W.2d 559, 563 (Iowa 1996). Citing Bertine, we upheld
the search as being conducted according to standardize procedures and
not in bad faith. Id. at 564–66. As with Huisman, no state constitutional
claim was presented in the case, and we were thus obliged by the
Supremacy Clause to follow the United States Supreme Court
warrantless inventory search and seizure precedents. See id. at 565.
B. Discussion.
1. The convergence of search and seizure cases geometrically
undermines privacy in automobile searches. This case must be
considered in the context of a disturbing trend related to traffic stops in
the federal caselaw. At the outset, as noted by Justice Kennedy, just
about anyone if followed for a few blocks may be arrested for traffic
infractions. Maryland v. Wilson, 519 U.S. 408, 423, 117 S. Ct. 882, 890
34
(1997) (Kennedy, J., dissenting). The United States Supreme Court has
held that in making the discretionary choice to make a traffic stop, law
enforcement’s subjective motivation is not subject to review. Whren v.
United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). Once
the police have made the virtually unreviewable discretionary decision to
stop a vehicle, the driver may be arrested for a minor traffic violation,
even if the violation is not punishable by a jail term. Atwater v. City of
Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001). Then,
pursuant to an impoundment under a written or even unwritten policy,
law enforcement may engage in a thorough search of the vehicle,
including opening closed containers. Bertine, 479 U.S. at 375, 107 S. Ct.
at 743.
The end result of Whren, Atwater, and Bertine is law enforcement
has virtually unlimited discretion to stop arbitrarily whomever they
choose, arrest the driver for a minor offense that might not even be
subject to jail penalties, and then obtain a broad inventory search of the
vehicle—all without a warrant. When considered in context, the
inventory search does not emerge as something for the benefit of the
owner or driver, but instead is a powerful unregulated tool in crime
control. 2 See David A. Harris, “Driving While Black” and All Other Traffic
2There is empirical evidence police disproportionately focus on minorities in
street encounters and traffic stops. See Charles R. Epp, et al., Pulled Over: How Police
Stops Define Race and Citizenship 155, 167 (2014) (surveying random sampling of adult
drivers in Kansas City metro area, finding African-Americans more than three times as
likely to be stopped in investigatory, as opposed to safety enforcement, police stops);
Frank R. Baumgartner, et al., Racial Disparities in Traffic Stop Outcomes, 9 Duke Forum
for L. & Soc. Change 21, 34 (2017) (using publicly available information from 132 police
agencies across sixteen states, finding nationally, on average, Hispanic and African-
American drivers were searched at more than double the rate of white drivers during
routine traffic stops); Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. Miami L.
Rev. 425, 431–32 (1997) (citing statistics from New Jersey, Maryland, and Florida
indicating approximately 70% of the motorists stopped were African-American, and, in
35
Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L.
& Criminology 544, 559 (1997); Wayne R. LaFave, The “Routine Traffic
Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth
Amendment, 102 Mich. L. Rev. 1843, 1902–05 (2004); Arnold H. Loewy,
Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John’s L. Rev.
535, 544–45 (2002) [hereinafter Loewy] (noting an inventory search,
“[w]hen coupled with an unchanneled power to arrest for traffic offenses,
. . . powerfully contributes to the broken balance between police and
citizens” (footnote omitted)); William J. Mertens, The Fourth Amendment
and the Control of Police Discretion, 17 U. Mich. J.L. Reform 551, 564
(1984). 3 A warrantless inventory search and seizure seems more like a
law enforcement weapon than a benign service to citizens.
An essentially unregulated legal framework allowing wide police
discretion in stopping, arresting, and conducting warrantless inventory
searches of the driver’s automobile amounts to a general warrant regime
that is anathema to search and seizure law. See Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 669, 115 S. Ct. 2386, 2398 (1995) (O’Connor, J.,
dissenting) (explaining how the warrant requirement was chosen by the
framers of the Constitution to curb the abuses of the general warrant);
Ochoa, 792 N.W.2d at 271–72 (describing the hated general warrants in
the case of Florida, African-American or Hispanic); Peter Hanink, Don’t Trust the Police:
Stop Question Frisk, COMPSTAT, and the High Cost of Statistical Over-Reliance in the
NYPD, 2013 J. Inst. Just. Int’l Stud. 99, 102–03 (2013) (examining data collected by
NYPD, finding racial minorities are stopped at a disproportional rate).
3There is good reason to believe law enforcement may see warrantless inventory
searches as an end run around usual warrant requirements. For example, after Gant,
the Federal Law Enforcement Training Center issued a ten-page report that, among
other things, emphasized while the entire passenger compartment could no longer be
searched under the previous Belton rule, a full search of the interior may be
accomplished through an inventory search. See Jennifer G. Solari, The United States
Supreme Court’s Ruling in Arizona v. Gant: Implications for Law Enforcement Officers,
May 2009 Fed. L. Enf’t Informer 3, 8 (2009).
36
England and the American colonies); Barbara C. Salken, The General
Warrant of the Twentieth Century? A Fourth Amendment Solution to
Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,
256–58 (1989) (comparing unfettered discretion to arrest for traffic
violations to general warrants and writs of assistance in the
revolutionary era). Such an unregulated atmosphere leads to a real risk
that persons subject to stops, arrest, and searches may be selected
arbitrarily or based upon impermissible criteria such as racial profiling.
See State v. Tyler, 830 N.W.2d 288, 297 n.4 (Iowa 2013) (noting “the
possibility for racial profiling requires us to carefully review the objective
basis for asserted justifications behind traffic stops”); Pals, 805 N.W.2d
at 772 & n.5 (discussing racial profiling claims in traffic stops).
2. Independent interpretation of search and seizure cases under
article I, section 8 of the Iowa Constitution. The warrantless inventory
search and seizure cases involving automobiles are consistent with a
recent departure of the United States Supreme Court from the traditional
warrant preference to an open-ended and free-floating “reasonableness
requirement.” See Illinois v. Rodriguez, 497 U.S. 177, 198, 110 S. Ct.
2793, 2806–07 (1990) (Marshall, J., dissenting) (“Where this free-floating
creation of ‘reasonable’ exceptions to the warrant requirement will end,
now that the Court has departed from the balancing approach that has
long been part of our Fourth Amendment jurisprudence, is unclear.”);
Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating
the Fourth Amendment, 44 Vand. L. Rev. 473, 474–80 (1991). The
Supreme Court used to say that the touchstone to the Fourth
Amendment was the warrant requirement, subject to very limited
exceptions. See Katz, 389 U.S. at 356–57, 88 S. Ct. at 514; Johnson v.
United States, 333 U.S. 10, 14–15, 68 S. Ct. 367, 369 (1948). Under the
37
innovations introduced in recent years, the United States Supreme Court
has now downgraded and demoted the warrant requirement and declared
the touchstone to Fourth Amendment analysis is a general, free-floating
reasonableness standard which has no relationship to the warrant
requirement of the Fourth Amendment and may, in fact, override it.
Rodriguez, 497 U.S. at 198, 110 S. Ct. at 2806; Jack Wade Nowlin, The
Warren Court’s House Built on Sand: From Security in Persons, Houses,
Papers, and Effects to Mere Reasonableness in Fourth Amendment
Doctrine, 81 Miss. L.J. 1017, 1057–60 (2012). As a result, litigants have
looked to state supreme courts to adjust the balance, with some notable
success. 4 See Loewy, 76 St. John’s L. Rev. at 579; see generally Stephen
E. Henderson, Learning from All Fifty States: How to Apply the Fourth
Amendment and Its State Analogs to Protect Third Party Information from
Unreasonable Search, 55 Cath. U.L. Rev. 373 (2006).
While the United States Supreme Court has departed from the
traditional warrant preference approach under the Fourth Amendment,
we have declined to do so under the search and seizure provision of
article I, section 8 of the Iowa Constitution. Our recent cases repeatedly
embrace what can only be characterized as a strong warrant preference
interpretation of article I, section 8. Gaskins, 866 N.W.2d at 9 (“ ‘A
warrantless search is presumed unreasonable’ unless an exception
applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997));
4See, e.g., State v. Sullivan, 74 S.W.3d 215, 222 (Ark. 2002) (declining to follow
United States Supreme Court approach on remand from Arkansas v. Sullivan, 532 U.S.
769, 121 S. Ct. 1876 (2001)); Sitz v. Dep’t of State Police, 506 N.W.2d 209, 224–25
(Mich. 1993) (declining to follow Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110
S. Ct. 2481 (1990)); State v. Robinette, 685 N.E.2d 762, 771–72 (Ohio 1997) (declining
to follow Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996)); Opperman, 247 N.W.2d
at 675 (declining to follow Opperman, 428 U.S. 364, 96 S. Ct. 3092).
38
Short, 851 N.W.2d at 502 (“We have little interest in allowing the
reasonableness clause to be a generalized trump card to override the
warrant clause in the context of home searches.”); Baldon, 829 N.W.2d at
791 (“It is well-settled that warrantless searches are virtually ‘per se
unreasonable . . . .’ ”); Ochoa, 792 N.W.2d at 269 (“[T]he Reasonableness
Clause cannot be used to override the Warrant Clause.”). Thus, while
the United States Supreme Court in recent years has relaxed the grip of
the traditional warrant requirement to advance the claimed interests of
law enforcement, we have held firm in protecting privacy interests
through a robust warrant requirement.
Further, to the extent open-ended standards like reasonableness
are applicable to search and seizure law, we have tended to apply open-
ended standards more stringently than federal caselaw. This principle is
illustrated in Pals, 805 N.W.2d at 767. In that case, Pals was stopped for
a minor civil infraction. Id. at 769. When Pals was in the squad car
awaiting an uncertain fate after being subjected to a Terry-type pat-
down, the officer extracted consent to conduct a warrantless search of
Pals’ truck, which yielded drugs. Id. at 770. On the issue of consent, we
reserved for another day the issue of whether we should abandon the
fuzzy, multifactored approach to consent endorsed by the United States
Supreme Court in Schneckcloth v. Bustamonte, 412 U.S. 218, 227, 93
S. Ct. 2041, 2047–48 (1973), in favor of a bright-line rule that police
must advise an individual of his right to refuse a search in order for the
consent to be knowing and voluntary. Pals, 805 N.W.2d at 782; see
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)
(advocating a bright-line consent rule). Instead, we applied the
Schneckcloth factors stringently and found the consent could not be
considered voluntary. Pals, 805 N.W.2d at 782–83.
39
3. Evaluation of privacy interest in closed containers in automobiles.
In addition to emphasizing the traditional warrant requirement and more
stringently applying open-ended reasonableness concepts in search and
seizure law, we have also departed from federal precedent in the
evaluation of the strength of competing interests involved in warrantless
inventory searches of automobiles. Federal caselaw has tended to
minimize the strength of the privacy interest in the interior of
automobiles, but in Gaskins, we took a different approach. 866 N.W.2d
13–14. In Gaskins, we held a warrantless search of a container in a
validly stopped automobile was not a search incident to arrest and
therefore violated article I, section 8 of the Iowa Constitution. Id. at 16–
17. We noted in that context article I, section 8 protected reasonable
expectations of privacy and that the Iowa framers placed considerable
value on the sanctity of private property. Id. at 16.
As noted by a special concurrence in Gaskins, “there is a split of
authority on the question of whether there is a broad automobile
exception” to search and seizure provisions under state constitutions.
Id. at 38 (Appel, J., concurring specially). The Gaskins concurrence
explained that automobiles are used for more than mere transportation.
Id. at 37. The concurring opinion noted that “[g]love compartments and
consoles are pretty good places to keep ‘papers and effects.’ ” Id. The
concurrence pointed out that automobiles are often used as mobile
offices and may contain all manner of private materials. Id. Professor
LaFave has emphasized that a party’s personal effects stored in an
automobile are entitled to constitutional protection. LaFave, Search and
Seizure § 7(2)(b), at 734–38. While it may be that the home is entitled to
greater protection because of enhanced privacy concerns, we think that
owners and drivers have a substantial privacy interest in “papers and
40
effects” that may be found within the passenger compartment, glove
compartment, or trunk of an automobile.
4. Evaluation of law enforcement interests supporting warrantless
inventory searches and seizures of automobiles. We have not recently
examined the weight of the state’s interest in protecting the property in
impounded vehicles or of protecting the police from false claims. Cf.
Lafayette, 462 U.S. at 646, 103 S. Ct. at 2609 (suggesting that arrested
persons “have been known” to make false claims of theft). It may be
true, as stated in Lafayette, that “[i]t is not unheard of for persons
employed in police activities to steal property taken from arrested
persons,” id., but the remote possibility by itself does not establish a
strong government interest. We think the interest is insubstantial for
several reasons.
First, the risk of a false-claim loss is not very great. Any false
claim would have to overcome difficult facts if the automobile is locked
and stored in a secure impoundment facility. See Hite, 669 P.2d at 345–
46 (noting shed where police placed impounded vehicles was locked and
there was no evidence of past thefts at the location). The State has not
cited, and we have not found, any empirical evidence that false claims
are a serious problem. Indeed, in Lafayette, the minimal and not very
convincing observation was made that such claims “were not unheard
of.” 462 U.S. at 646, 103 S. Ct. at 2609. The mere theoretical possibility
of a rare and in almost all cases unsuccessful claim of theft cannot
overcome the substantial expectation of privacy an owner or driver has in
the contents of an automobile.
Second, to the extent there is a minimal false-claim problem, a
written inventory of property by police is not a very effective way of
dealing with it. See Opperman, 428 U.S. at 391, 96 S. Ct. at 3108
 41
(Marshall, J., dissenting) (“[I]t may well be doubted than an inventory
procedure would in any event work significantly to minimize the
frustrations of false claims.”). A party determined to make a false claim
may simply allege that the valuables were not included in the written
inventory, either through mistake or design. Or, as Justice Powell
pointed out in his Opperman concurrence, claimants could allege that
the missing items were stolen prior to the inventory. Id. at 378–79, 96
S. Ct. at 3102 (Powell, J., concurring).
Third, there are other equally or more effective methods in securing
property other than a warrantless inventory search. Containers inside
the vehicle may simply be sealed and stored. Mozzetti, 484 P.2d at 89.
Such a process would provide at least as much protection to the remote
threat as a warrantless inventory search of containers. United States v.
Bloomfield, 594 F.2d 1200, 1203 (8th Cir. 1979).
Finally, under Iowa law, involuntary or gratuitous bailees of
another’s property are not responsible for its loss unless guilty of gross
negligence in its keeping. Siesseger v. Puth, 213 Iowa 164, 177–78, 239
N.W. 46, 52 (1934); Sherwood v. Home Sav. Bank, 131 Iowa 528, 536,
109 N.W. 9, 12 (1906); Estate of Martin, No. 11–0690, 2012 WL 1431490
at *4–5 (Iowa Ct. App. 2012); Khan v. Heritage Prop. Mgmt., 584 N.W.2d
725, 730 n.4 (Iowa Ct. App. 1998). It is striking that while the South
Dakota Supreme Court emphasized the limited exposure of law
enforcement to theft claims as a gratuitous bailee, Opperman, 228
N.W.2d at 159, the majority of the United States Supreme Court in
Opperman ignored the limitation, see 428 U.S. at 369, 96 S. Ct. at 3097
(majority opinion). The very limited exposure of police when serving as
an involuntary or gratuitous bailee has been cited as undercutting the
liability rationale for a warrantless inventory search. See, e.g., United
42
States v. Lyons, 706 F.2d 321, 334 n.21 (D.C. Cir. 1983) (questioning in
dicta the reliance in Opperman on the rationale of protecting the police
from false claims because the police would be involuntary bailees of the
automobile who would have a slight duty of care); Reeves v. State, 599
P.2d 727, 736–37 (Alaska 1979) (“[T]he state, as an involuntary bailee,
has ‘only a slight duty of care’ with respect to property in its possession
because of the arrest of the property owner and this ‘duty could easily be
met without extensive inventory.’ ” (quoting Daniel, 589 P.2d at 415));
Mozzetti, 484 P.2d at 89–90 (holding police as involuntary bailees are not
liable for ordinary negligence and have a duty to use only slight care in
protecting the bailment); State v. Ching, 678 P.2d 1088, 1093 (Haw.
1984) (holding in evaluating constitutionality of inventory search, it is
important that gratuitous bailee is liable only for gross negligence or bad-
faith loss); Herring v. State, 404 A.2d 1087, 1091–92 (Md. Ct. App. 1979)
(discussing the duty owed by the police to safeguard the contents of an
impounded vehicle and rejecting the argument that an inventory search
was necessary to protect the contents of the car because the police are
gratuitous or involuntary bailees); White, 958 P.2d at 986 n.9 (“When the
police impound a vehicle they become involuntary bailees.”); State v.
Singleton, 511 P.2d 1396, 1400 (Wash. Ct. App. 1973) (holding that when
the police impound a car, they thereby become involuntary bailees); see
also 3 LaFave, Search and Seizure § 7.4(a), at 842 & n.47 (noting “[a]s for
the protection-against-claims argument, certainly security measures
short of inventory will suffice to protect against tort claims” and citing
Mozzetti, 484 P.2d 84, for the proposition that as involuntary bailees,
police adequately fulfill their duty by rolling up the windows and locking
the doors of impounded vehicles). The fact that state law minimized the
liability exposure of involuntary or gratuitous bailees was a factor when
43
the South Dakota Supreme Court declined to follow the United States
Supreme Court on remand in the Opperman case. See Opperman, 247
N.W.2d at 675 (rejecting search under South Dakota Constitution);
Opperman, 228 N.W.2d at 159 (explaining that police act as “gratuitous
depositors” when in possession of impounded car and state law requires
“slight care for the preservation of the thing deposited”).
Based on the above reasons—the minimal risk, the limited
effectiveness of inventories, the availability of other equally effective but
less intrusive options, and the limited exposure of gratuitous bailees—
the State’s interest in protecting itself from false claims is at best
insubstantial.
We now turn to an examination of the second justification of
inventory searches, police safety. 5 Where the driver or owner is
separated from the vehicle, and the vehicle is securely impounded, there
is little risk. In Gant, the United States Supreme Court clarified that
when an automobile is stopped, the risk of harm is not a basis for search
of the passenger compartment when the driver is secure in the backseat
of a police vehicle. 556 U.S. at 344, 129 S. Ct. at 1719. Justice Scalia
characterized the assertion of officer safety supporting automatic
searches of automobiles regardless of the proximity of the driver and
others to the interior of the car was a “charade of officer safety.” 556
U.S. at 353, 129 S. Ct. at 1725 (Scalia, J., concurring).
In Gaskins, we applied the Gant principles in the context of an
automobile search, rejecting a safety rationale when the driver was
separated from the vehicle. Gaskins, 866 N.W.2d at 16–17 (majority
5In Opperman, the safety rational was advanced in Justice Burger’s plurality
opinion. 428 U.S. at 370, 96 S. Ct. at 3097. The dissenters, as well as Justice Powell
in concurrence, did not agree with the rationale. Id. at 378, 96 S. Ct. at 3101–02
(Powell, J., concurring); id. at 389, 96 S. Ct. at 3107–08 (Marshall, J., dissenting).
44
opinion). An impounded vehicle is similarly remote from the owner or
driver. If the police may engage in warrantless searches of automobiles
in inventory to protect the police, the same reasoning would allow a
warrantless search of any locked and parked automobile to protect the
public. See 3 LaFave, Search and Seizure § 7(a), at 843. A search of all
cars that happen to be impounded without any showing at all regarding
potential safety issues is akin to a general warrant. See Gerald S.
Reamy, Michael H.J. Bassett, & John A. Molchan, The Permissible Scope
of Texas Automobile Inventory Searches in the Aftermath of Colorado v.
Bertine: A Talisman Is Created, 18 Texas Tech. L. Rev. 1165, 1183
(1987). Further, where containers are involved, it is difficult to see
danger arising by a requirement that containers not be searched but
stored as a unit without specific knowledge of their contents for
safekeeping. Bloomfield, 594 F.2d at 1203. With respect to the danger
justification for inventory searches, Professor LaFave has observed that
“it is difficult to take this contention seriously.” 3 LaFave, Search and
Seizure § 7.4(a) n.18, at 835. We agree with Professor LaFave and
decline to put much weight in the alleged safety rationale.
The remaining interest cited by the United States Supreme Court
for warrantless inventory searches is the benign purpose of assisting the
owner in the protection of variables. See Opperman, 428 U.S. at 369–70,
96 S. Ct. 3097. According to this rationale, the police inventory the
contents of a vehicle for the benefit of the owner or operator of the vehicle
to protect the owner’s property. See id. Of course, if the risk of theft is
at best insubstantial, the benefit to the owner is also at best
insubstantial. Further, we doubt that many motorists would regard a
thorough inventory search as something helpful. If the warrantless
inventory search is really for the benefit of the owner or driver, law
45
enforcement should not object to allowing an owner the option to opt out
of the state’s beneficence. See, e.g., Virgil, 268 Cal. App. 2d at 132;
Miller, 403 So. 2d at 1314; Fortune, 689 P.2d at 1203. Further, if the
warrantless inventory search is for the benefit of the owner, there should
be no difficulty with the notion that the owner or driver should have the
option to make alternate arrangements to protect property in the vehicle
or consent to the warrantless search. See Williams, 689 P.2d at 1071.
5. Status of warrantless inventory searches under article I, section
8 of the Iowa Constitution. With respect to the decision to impound,
there is merit to the notion that the police should explore alternative
arrangements short of impoundment. This was our approach in Kuster,
353 N.W.2d 428. If the police goal is truly not investigative but to protect
property and avoid false claims, the owner or driver of the vehicle should
have the ability to opt for alternatives that do not interfere with public
safety other than police impoundment. These options could include
park-and-lock options on nearby streets or parking lots or calling a
friend or third party to drive the vehicle away. Impoundment of a vehicle
should be permitted only if these options have been adequately explored.
This is the view endorsed by Professor LaFave. 3 LaFave, Search and
Seizure § 7.3(c), at 820.
In addition, where impoundment is necessary, the next question is
whether the police may conduct an inventory search of the vehicle and, if
so, what is its scope. First, when impoundment is contemplated, law
enforcement should ask the driver whether there is any property in the
vehicle the driver wishes to retain. If so, the driver should be allowed to
retrieve it. Second, with respect to property left behind, law enforcement
may ask the driver whether there is anything of value requiring
46
safekeeping and make a record of the response in order to protect law
enforcement from a later claim of theft of valuables.
Absent specific consent to search them, however, police must
inventory closed containers left behind in the vehicle as a unit, an
approach that vindicates the policies of protecting property and avoiding
false claims. See Hite, 338 P.3d at 809; Wisdom, 349 P.3d at 965. It is
important to note, however, that to the extent that consent is a factor, it
should not be pursuant to an open-ended, multifactored Schneckcloth
test. See 412 U.S. at 227, 93 S. Ct. at 2047–48. Such an approach
should be anathema to those who favor “bright line” approaches.
Instead, any consent must follow Zerbst to be knowing and voluntary.
304 U.S. at 464, 58 S. Ct. at 1023. Specifically, the police should advise
the owner or operator of the options to impoundment; personal items
may be retrieved from the vehicle; and if the vehicle is impounded,
containers found within the vehicle will not be opened but stored for
safekeeping as a unit unless the owner or operator directs otherwise.
None of these requirements for warrantless inventory search and
seizure occurred in this case. Even if it could be argued that in light of
the registration problems, the police were entitled to seize the car, the
scope of the search, however, which included a search of the black bag—
a closed container—was impermissible under the principles outlined
above absent a knowing and voluntary consent. As a result, the motion
to suppress in this case should have been granted because the
warrantless inventory search violated article I, section 8 of the Iowa
Constitution.
We note that our holding in this case does not mean that a
warrantless impoundment of a vehicle is never appropriate. The state
may develop a policy on impoundment and inventory searches consistent
47
with the constitutional requirements embraced in this opinion. For
example, a policy might provide that the police may impound a vehicle
when the motorist agrees to such impoundment and has had an
opportunity to retrieve his or her belongings. And a policy might provide
for impoundment of vehicles when the motorist is not present to give
consent. Under these circumstances, law enforcement may implement a
policy that allows officers to properly secure closed containers found in
plain view at the police station. The impoundment and search in this
case, however, was outside the bounds of any constitutionally
permissible local impoundment and inventory policy.
V. Conclusion.
For the above reasons, we reverse the ruling of the district court
denying the motion to suppress and remand the matter to the district
court.
REVERSED AND REMANDED.
Cady, C.J., Wiggins and Hecht, JJ., concur. Cady, C.J., files a
separate concurring opinion. Mansfield, J., files a separate concurring
opinion in which Waterman and Zager, JJ., join.
48
#16–0736, State v. Ingram
CADY, Chief Justice (concurring specially).
I concur in the majority opinion and the holding that closed
containers located in an impounded vehicle may not be opened by police
solely for the purpose of inventorying the contents, absent consent by the
owner or operator.
As this case illustrates, the problem with the inventory search
doctrine is it gives law enforcement officers free rein to conduct a
warrantless investigatory search and to seize incriminating property,
despite the doctrine’s genesis as a means of protecting private property,
guarding against false theft claims, and protecting officers from potential
harm. See South Dakota v. Opperman, 428 U.S. 364, 369–70, 96 S. Ct.
3092, 3097 (1976). Yet, the three rationales that have allowed police to
inventory the personal property located in an impounded vehicle may
also be upheld by applying the more balanced doctrines of consent, plain
view, Terry, 6 and probable cause. Indeed, officers may protect private
property by invoking the consent exception, and officers concerned about
safety when handling requested items within a vehicle may apply the
existing doctrines of plain view, Terry, and probable cause that currently
exist to protect police in all encounters with citizens. This approach
strikes a better balance between the interests of citizens and the needs of
government.
6See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1808, 1883 (1968).
49
#16–0736, State v. Ingram
MANSFIELD, Justice (concurring specially).
I concur in the result only. I would decide this case under
established Fourth Amendment law rather than under a new
interpretation of article I, section 8 of the Iowa Constitution.
In the present case, law enforcement conducted a roadside
inventory search of an impounded vehicle and found methamphetamine
and a glass pipe inside a drawstring cloth bag on the floorboard by the
gas pedal. I would find this search did not comply with Fourth
Amendment standards. The State failed to offer any evidence of an
inventory search policy regarding closed containers and thus fell short of
what the United States Supreme Court required, unanimously, in Florida
v. Wells, 495 U.S. 1, 4–5, 110 S. Ct. 1632, 1635 (1990).
I. The Inventory Search Violated the Fourth Amendment.
In Wells, the Court found the opening of a locked suitcase stored in
a trunk pursuant to an inventory search violated the Fourth
Amendment. Id. at 2, 5, 110 S. Ct. at 1634–35. Critically, “the record
contained no evidence of any Highway Patrol policy on the opening of
closed containers found during inventory searches.” Id. at 3, 110 S. Ct.
at 1634. The Court went on,
Our view that standardized criteria, or established
routine, must regulate the opening of containers found
during inventory searches is based on the principle that an
inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence. The
policy or practice governing inventory searches should be
designed to produce an inventory. The individual police
officer must not be allowed so much latitude that inventory
searches are turned into “a purposeful and general means of
discovering evidence of crime.”
50
Id. at 4, 110 S. Ct. at 1635 (citations omitted) (quoting Colorado v.
Bertine, 479 U.S. 367, 376, 107 S. Ct. 738, 743 (1987) (Blackmun, J.,
concurring)).
We have not had difficulty applying Wells in the past. See, e.g.,
State v. Huisman, 544 N.W.2d 433, 440–41 (Iowa 1996) (upholding an
inventory search conducted under a standard policy which stated that
“[a]ll vehicles impounded at the direction of a member of the Department
will be fully inventoried, and the proper Impound Form will be prepared.
This includes all containers which may hold valuables or other personal
property, even if closed”); State v. Jackson, 542 N.W.2d 842, 845–46
(Iowa 1996) (upholding an inventory search under the Fourth
Amendment where there was “ample, uncontroverted testimony that the
patrol department in the present case had standardized inventory criteria
that included opening all locked and unlocked containers and
inventorying the containers’ contents”). We can apply Wells today.
The majority recites the facts correctly, though with insufficient
detail for my purposes. On October 30, 2015, around 6:30 a.m., Jasper
County Deputy John Burdt was stationed in his patrol car along
Highway 14 in Newton. He had received a report of a vehicle being
driven recklessly. As the vehicle passed, Deputy Burdt noticed its rear
license plate was not illuminated. Deputy Burdt initiated a stop for this
traffic violation.
While making the stop, Deputy Burdt determined the vehicle’s
registration sticker did not match its license plate and the plate had
expired in 2013. The driver, Bion Ingram, was also unable to produce a
copy of the registration or proof of insurance for the vehicle. Deputy
Burdt informed Ingram, who was on his way to work, that the vehicle
51
was going to be impounded and towed due to the improper use of a
registration.
Deputy Burdt did not arrest Ingram. Instead, he offered to give
him a ride to the nearest gas station so he could be picked up and taken
to work. Ingram accepted this arrangement and called for a ride on his
cell phone. Ingram asked about getting his work tools out of the vehicle.
Deputy Burdt informed Ingram this could be done after the citations
were completed.
Meanwhile, Newton Police Officer Bernard Eckert had arrived on
the scene. Deputy Burdt informed Ingram that the vehicle was going to
be inventoried and inquired if there was anything in it of high value “as a
protection to all individuals involved.” Ingram said there wasn’t.
Because Deputy Burdt wanted Ingram to be able to get to work as
quickly as possible, Deputy Burdt asked Officer Eckert to remove the
license plates and perform an inventory of the vehicle while Deputy
Burdt worked on the citations.
Officer Eckert completed his inventory on a Newton Police
Department form. The form had spaces to fill in the name of the officer
performing the inventory; the date, place, and time of the inventory;
descriptive information on the vehicle; the names and addresses of the
owner and the driver; 7 and the locations where the vehicle was being
secured and where the keys would be. The inventory form also had
spaces for listing “items of value.” Additionally, there were spaces to list
“criminal evidence found,” the “location” where each item of such
evidence had been found, and where the evidence had been subsequently
“placed.”
7The vehicle was owned by Ingram’s girlfriend.
52
In the course of the inventory, Officer Eckert found a drawstring
cloth bag on the floorboard of the driver’s seat by the gas pedal. The bag
was of a size that could have contained a small gun or valuables.
Instead, it held a glass pipe and what a field test determined to be
approximately one gram of methamphetamine. Officer Eckert wrote
down these items under “criminal evidence found.” On the inventory
form, he also identified a “power converter” and “various tools” as “items
of value.”
Deputy Burdt testified at the suppression hearing. His testimony
indicated the Jasper County Sheriff’s Office has “an actual manual or
policy on inventorying towed vehicles.” However, the policy itself was not
introduced into evidence. Instead, Deputy Burdt explained,
It’s common policy—or common any time a vehicle is towed
that we do a vehicle inventory for documentation of the
vehicle being towed, where it’s going, what’s the contents of
the vehicle, and where—where is it being towed to.
Notably, no evidence was presented that the sheriff’s office policy
addressed closed containers either directly or by implication.
Furthermore, Officer Eckert of the Newton Police Department was
the one who actually performed the inventory using the police
department’s form. Officer Eckert did not testify at the suppression
hearing. No evidence was presented at the suppression hearing as to the
Newton Police Department’s inventory search policy, let alone as to a
policy regarding closed containers.
In Wells, the Court emphasized there had to be an actual policy on
closed containers. 495 U.S. at 4–5, 110 S. Ct. at 1635. The search there
was invalid because the policy manual that had been introduced into
evidence “fail[ed] to address the question.” State v. Wells, 539 So. 2d
464, 469 (Fla. 1989) (discussing the contents of the policy manual that
53
made “no mention of opening closed containers”); see also Wells, 495
U.S. 5, 110 S. Ct. at 1635 (indicating “absent such a policy, the instant
search was not sufficiently regulated”). 8
The State has the burden of proving that a warrantless search falls
within a recognized exception. State v. Watts, 801 N.W.2d 845, 850
(Iowa 2011). What the State presented here fell substantially short of the
level of proof required in Wells. Deputy Burdt’s testimony was—if
anything—less specific than the manual provision deemed unsatisfactory
in Wells. See Wells, 539 So. 2d at 469 (noting the manual required “an
[i]nventory of all articles in the vehicle . . . such as articles of clothing,
equipment and tools” (second alteration in original)). Deputy Burdt’s
testimony established only that the inventory covered “the contents of
the vehicle.” This simply restates what an “inventory” is and neither
states nor implies anything about closed containers. Moreover, the
inventory was actually conducted by an officer belonging to a different
law enforcement agency, and there was no evidence as to the policy he
followed.
Thus, I would simply find the opening of the cloth bag as part of
the inventory search of the vehicle violated the Fourth Amendment. See
Tyler v. State, 185 So. 3d 659, 661, 663–64 (Fla. Dist. Ct. App. 2016)
(invalidating the search of a suitcase in a trunk during an inventory
search where “the state provided no evidence of the department’s
inventory policy, other than the officer’s testimony that one existed and
that the contents of the impounded vehicle were required to be
inventoried and logged for liability purposes”); Sams v. State, 71 N.E.3d
8The Florida Supreme Court’s decision was affirmed on appeal by the United
States Supreme Court in Wells, 495 U.S. 1, 110 S. Ct. 1632.
54
372, 375, 378–79, 383 (Ind. Ct. App. 2017) (overturning an inventory
search of a fast-food bag and a hamburger box where the written policy
was to “list all personal property” whereas the practice in the field was to
look for anything “valuable,” thus resulting in too much discretion); State
v. Baker, 395 P.3d 422, 428 (Kan. 2017) (“The failure to present any
evidence of standardized criteria or an established routine governing the
opening of closed containers during inventory searches is fatal to the
State’s inevitable discovery claim.”); People v. Mead, 908 N.W.2d 555,
563–64 (Mich. Ct. App. 2017) (noting the search of a backpack in a
vehicle was not justified as an inventory search because the officer
merely “testified that he searches vehicles to ‘check for valuables or any
damage to the vehicle, anything that may be in there’ ” but “offered no
further explanation of police department policies, did not explain
department policy for the search of a container, and did not explain how
his search complied with department policy”); Commonwealth v. West,
937 A.2d 516, 529 (Pa. Super. Ct. 2007) (determining an inventory
search that uncovered cocaine in a motorcycle seat was invalid because
“the suppression transcript simply [did] not contain testimony showing
the department had in place and employed a standard, reasonable policy
when searching the vehicle” and when “[t]he Commonwealth had the
burden to demonstrate the particulars of that policy and to show the
search was done in accordance therewith”); State v. Molder, 337 S.W.3d
403, 410 (Tex. Ct. App. 2011) (finding the search results should be
suppressed where the state failed to introduce the actual inventory policy
and “Trooper Gillum’s concise testimony establishe[d] that [the
department of public safety] ha[d] a general policy to inventory vehicles
associated with defendants’ arrests, but the testimony relate[d] nothing
55
about the scope of the policy or how it affect[ed] closed containers such
as appellee’s roped blue bag”). I would end the opinion at this point.
II. The Majority’s Iowa Constitutional Analysis Is Flawed.
Instead of following the foregoing path, which seems to me not in
the least difficult to follow, the majority decides to “stake out higher
constitutional ground” and “restore the balance between citizens and law
enforcement.” As it is the end of our term, I will not debate these
broader themes with the majority. But I will explain where I disagree
with the substance of the majority’s ruling.
First, I do not believe the majority’s ruling will promote “stability
and finality in law.” Instead, it will create uncertainty and unneeded
burdens.
Take Deputy Burdt’s decision to impound the vehicle. I thought
that was an easy call in this case. The vehicle had no valid registration
and could not be legally driven. Nor could it be left where it was on the
side of the highway. However, the majority now requires that “the owner
or driver . . . have the ability to opt for alternatives other than police
impoundment that do not interfere with public safety.” So the first thing
law enforcement must do is develop a list of options and provide it to the
motorist. What options? For example, must the motorist be offered the
chance to arrange his or her own tow? Does law enforcement need to
wait around while this is happening? Suppose the motorist says, “I don’t
know what to do about the vehicle. You should check with the owner.”
What if the motorist is being arrested? What if law enforcement wants to
impound the vehicle and consult with the county attorney’s office on
whether a warrant is appropriate? What if no driver is present?
Next, the contents of the vehicle. The majority says the driver
should have the opportunity to retrieve items from the vehicle. This
56
means, of course, the officer must wait while items are retrieved. But
again, what if the driver is being arrested or asks to check with the
owner? Can the officer watch while items are being retrieved? If not,
what about the officer’s safety?
Regarding closed containers, the majority indicates not only that
they may not be opened, but also that the motorist must be told they
won’t be opened “but stored for safekeeping as a unit unless the owner or
operator directs otherwise.” Does this mandatory disclaimer prevent law
enforcement from getting a warrant?
Law enforcement needs clear rules, not elaborate, partly developed
decision trees. We should not be converting roadside stops into episodes
from Plato’s Dialogues. Respectfully, I believe the Wells standard works
better than the majority’s approach.
Second, despite what the majority may suggest, its approach is not
supported by constitutional precedents from other states. The majority
directs us to precedents from Indiana, New Jersey, Oregon, South
Dakota, Texas, and Washington.
In reality, three of those six states do not now limit closed
container searches when conducted pursuant to a bona fide inventory
search policy. The majority has this caselaw wrong.
The Indiana Court of Appeals in State v. Lucas did invalidate the
search of a locked box under both the state and federal constitutions.
859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007). However, this ruling was
not based on a blanket prohibition against opening closed containers but
instead on the fact that the inventory policy was silent on the issue of
locked boxes. Id. at 1250–51. In George v. State, the court concluded
that a search of the contents of a pill bottle found in a lidless condom
box was permissible. 901 N.E.2d 590, 592, 597 (Ind. Ct. App. 2009).
57
Also, South Dakota has backed down from its earlier views on
inventory searches. Under the South Dakota Constitution, “so long as
there is a good faith, noninvestigatory inventory search conducted
pursuant to reasonable, standardized and uniform policies, it need not
be restricted to articles which are within the plain view of the officers’
vision.” State v. Flittie, 425 N.W.2d 1, 5–6 (S.D. 1988); see also State v.
Hejhal, 438 N.W.2d 820, 821–22 (S.D. 1989) (holding the inventory
search of the wallet was conducted according to “reasonable[,]
standardized[,] and uniform policies”).
In Autran v. State, a plurality of the Texas Court of Criminal
Appeals found that the inventory search of the contents of a vehicle’s
trunk—including a box containing large sums of money and drug
residue—violated the Texas Constitution but not the Fourth Amendment.
887 S.W.2d 31, 33, 36, 42 (Tex. Crim. App. 1994) (en banc) (plurality
opinion). The plurality noted its decision was “not to say that officers
may never search a closed or locked container, only that the officers may
not rely upon the inventory exception to conduct such a warrantless
search.” Id. at 42.
Only two years later, though, another Texas appellate court
“decline[d] . . . to follow the plurality opinion in Autran because [it did]
not believe that Autran constitutes either binding precedent or sound
law.” Hatcher v. State, 916 S.W.2d 643, 645 (Tex. Ct. App. 1996). The
court thus concluded that the state constitution does not afford greater
rights than the Fourth Amendment in this area and therefore determined
that the inventory search of the defendant’s closed container—in this
instance, her purse—did not violate her constitutional rights. Id. at 644,
646; see also Hankston v. State, 517 S.W.3d 112, 120 (Tex. Crim. App.
2017) (rejecting the reasoning of the Autran plurality and instead finding
58
the court was “free to adopt the Supreme Court’s interpretation of the
Fourth Amendment, and apply it in this case, simply because it ‘makes
more sense’ ” (quoting Crittenden v. State, 899 S.W.2d 668, 673 (Tex.
Crim. App. 1995) (en banc))).
Two other states cited by the majority appear not to forbid all
opening of closed containers but focus on the type of container. In State
v. Hite, the Oregon Court of Appeals overturned an inventory search of a
backpack, not because of a strict rule against searches of closed
containers, but because the backpack was “not designed to contain or
objectively likely to contain valuables or even dangerous items.” 338
P.3d 803, 811 (Or. Ct. App. 2014). Later, in State v. Cleland, the same
court upheld an inventory search of a black nylon case that appeared to
be designed for holding small electronics. 410 P.3d 386, 387–88 (Or. Ct.
App. 2017).
In State v. Wisdom, the Washington Court of Appeals found that
the opening of a defendant’s shaving kit under an inventory search was a
violation of the defendant’s state constitutional rights. 349 P.3d 953,
955, 965 (Wash. Ct. App. 2015). The court’s focus, though, was on the
nature of the container and not whether it was open or closed:
A person does not rummage through a woman’s purse,
because of secrets obtained therein. A man’s shaving kit bag
can be likened to a woman’s purse. The kit bag could obtain
prescription drugs, condoms, or other items the owner
wishes shielded from the public. The bag is intended to
safeguard the privacy of personal effects. Literature,
medicines, and other things found inside a bag may reveal
much about a person’s activities, associations, and beliefs.
Id. at 961.
A cloth drawstring bag is the type of container that often does
contain valuables, such as jewelry or money, but usually does not
contain personal or health information. I am not persuaded that
59
Oregon—or perhaps Washington—would forbid inventorying the contents
of such a bag pursuant to an otherwise valid inventory search policy.
This leaves New Jersey as the remaining jurisdiction discussed by
the majority. New Jersey departs from federal precedent but uses a
balancing test under the state constitution that considers “the scope of
the search, the procedure used, and the availability of less intrusive
alternatives.” State v. Hummel, 179 A.3d 366, 373 (N.J. 2018) (quoting
State v. Mangold, 414 A.2d 1312, 1317 (N.J. 1980)). Whatever the merits
of this approach, it differs considerably from the approach taken by the
majority today.
Nor can the majority find nourishment in pre-Wells Iowa caselaw.
State v. Roth upheld the inventory search that included the opening and
examination of the contents of a bag. 305 N.W.2d 501, 507–08 (Iowa
1981). In State v. Kuster, our court struck down the impoundment of a
vehicle that had been locked and legally parked. 353 N.W.2d 428, 432
(Iowa 1984), overruled by Huisman, 544 N.W.2d at 440. Here, however,
the vehicle was not legally parked and could not have been legally driven.
Inventory searches are subject to abuse. Thus, it is important to
limit law enforcement discretion in this area. Everyone agrees on this
point. The relevant question, though, is how to limit that discretion. I
think Wells is a sounder approach than the majority’s. It allows law
enforcement to develop the policy, so long as it an actual policy, rather
than having nonexpert judges develop the policy. I’ve already discussed
what I believe to be the practical flaws in the majority’s approach.
Overall, I think the majority understates the legitimate need for
inventory searches, understates the willingness of defendants to make
false claims of missing property, and understates the potential risk to
60
law enforcement of transforming vehicle impoundments into lengthy,
interactive Q-and-A sessions.
III. Conclusion.
I would reverse the denial of Ingram’s motion to suppress without
embarking on a novel interpretation of article I, section 8 of the Iowa
Constitution. 9
Waterman and Zager, JJ., join this special concurrence.
9I do not follow why the majority believes it need not reach the sufficiency of the
evidence to sustain Ingram’s conviction. In my view, the evidence of guilt was
sufficient, although as a practical matter the reversal of the ruling on the motion to
suppress may end this case.