# State of Iowa v. Jesse Michael Gaskins

> Supreme Court of Iowa · June 30, 2015 · 866 N.W.2d 1

URL: https://www.frixlaw.com/law-library/cases/2812905

## Case

- **Full name:** STATE of Iowa, Appellee, v. Jesse Michael GASKINS, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** June 30, 2015
- **Citations:** 866 N.W.2d 1; 2015 Iowa Sup. LEXIS 80
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Cady, Wiggins, Appel, Waterman, Mansfield, Zager
- **Cited by:** 110 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2812905

## How later opinions describe it (automated extraction)

- explaining this exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations”
- noting that a search incident to arrest remains a valid exception to article I, section 8 of the Iowa Constitution “when the arrested person is within reach of contraband and thus able to attempt to destroy or conceal it”
- noting that for a claim of negligence, “the standard of ordinary care is an objective standard; it is the care that would be exercised by a reasonable actor under the circumstances”
- declining to adopt the federal “evidence- gathering purpose as a rationale for warrantless searches of automobiles and their contents incident to arrest under article I, section 8 of the Iowa Constitution” (emphasis added)

## Opinion text

IN THE SUPREME COURT OF IOWA
No. 13–1915

Filed June 30, 2015

STATE OF IOWA,

Appellee,

vs.

JESSE MICHAEL GASKINS,

Appellant.

Appeal from the Iowa District Court for Scott County, Henry W.

Latham II (motion to suppress), and John D. Telleen, Judges.

A criminal defendant appeals his convictions for possession of

marijuana with intent to deliver, failure to affix a drug tax stamp, and

knowingly transporting a revolver in a vehicle. He contends the district

court erred in denying his motion to suppress evidence discovered after

officers opened a locked safe they found inside the defendant’s vehicle

during a warrantless search incident to arrest. REVERSED AND
REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Michael Walton, County Attorney, and Patrick A.

McElyea, Assistant County Attorney, for appellee.
2

HECHT, Justice.

After making a routine traffic stop for an expired license plate, a

police officer smelled marijuana and confiscated one marijuana blunt

from the motorist. The officer ordered the motorist from the vehicle and

arrested him for possession of marijuana. After the motorist and his

passenger were placed in a squad car, a search of the passenger

compartment at the scene of the arrest revealed a small portable locked

safe. A police officer opened the safe without obtaining a search warrant

and discovered additional marijuana, drug paraphernalia, and a gun.

The motorist was charged with possession of marijuana with intent to

deliver, failure to affix a drug tax stamp, and knowingly transporting a

revolver in a vehicle. The district court denied the motorist’s motion to

suppress the contents of the locked container under the Federal and

State Constitutions and convicted the motorist of the charges. Upon our

review, we conclude the warrantless search of the container incident to

the motorist’s arrest violated his rights under article I, section 8 of the

Iowa Constitution.

I. Background Facts and Proceedings.

On December 18, 2012, while on second shift patrol, a Davenport

police officer observed a van moving on the roadway with expired Iowa

license plates. The officer initiated a traffic stop. As he approached the

van, the officer noticed a very strong odor of burnt marijuana emanating

from the vehicle. The driver of the van identified himself as Jesse

Gaskins, and a passenger in the front seat of the vehicle could not

produce identification.

The officer asked Gaskins about the odor of burnt marijuana.

Gaskins denied there was any marijuana in the vehicle. Suspecting

Gaskins’s answer was untrue, the officer replied that a drug detection
3

dog was on duty that night and that if it were brought to the scene it

would detect that the vehicle did contain marijuana. Upon hearing

about the prospect of summoning a drug dog, Gaskins said, “Okay, I’ll be

honest with you, I got a blunt.” He retrieved a partially-smoked

marijuana blunt from the van’s ashtray and gave it to the officer.

Because there were two van occupants, the officer requested a second

police unit be dispatched to the scene. When a second officer arrived,

the officers directed Gaskins and his passenger to exit the van. The

officer who initially made the stop immediately arrested Gaskins and

secured him inside a police car with his passenger.

Based on his interactions with Gaskins—particularly the fact that

Gaskins had initially lied about whether there was marijuana in the

vehicle—the arresting officer believed the vehicle contained more

marijuana than the blunt Gaskins had retrieved. He therefore directed

the second officer to conduct a search of the van to look for additional

drugs, paraphernalia, drug packaging materials, weapons, or “[a]nything

that was illegal.”

The second officer began conducting the search of the van and

discovered a small black portable safe between the driver’s seat and the

rear passenger seats. The safe was locked. The officer found a key to the

safe’s lock on the keyring in the van’s ignition and used it to open the

safe. He did not think about getting a warrant before opening the safe,

and later testified he considered it the same as if he had found a zipped

duffel bag or any other closed container while searching the van. 1 Inside

the safe, he found a loaded handgun with a defaced serial number,

1The searching officer testified he only opened the safe because he found the
key. If he had not found the key, he stated he would have informed the arresting officer
and “discussed it with him to see what [they] would have to [do].”
4

several baggies of raw marijuana, several pipes, and some large plastic

freezer bags that smelled of marijuana. The vehicle was inventoried,

towed, and impounded.

On April 3, 2013, the State charged Gaskins by trial information

with three counts: possessing marijuana with intent to deliver, knowingly

transporting a revolver in a vehicle, and failing to affix a drug tax stamp. 2

See Iowa Code § 124.401(1)(d); id. § 453B.12; id. § 724.4(1) (2011).

Gaskins filed a motion to suppress the contents of the safe, asserting

“[t]here existed no reason to proceed with the search . . . without a

warrant.” More specifically, he contended the search was not justified by

any threat to the officers’ safety or danger that evidence would be

destroyed because both occupants of the van had been placed in custody

and secured in a squad car away from the van. Gaskins requested the

court suppress all evidence removed from the safe because, under both

the United States Constitution and the Iowa Constitution, “the

[warrantless] search . . . violated his right to privacy in a locked safe.”

The State resisted the motion, asserting the warrantless search

was a permissible search incident to arrest because it was reasonable to

believe the van’s passenger compartment contained evidence of the

offense—marijuana possession—for which Gaskins was arrested. See

Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723–24, 173 L. Ed.

2d 485, 501 (2009) (“Police may search a vehicle incident to a recent

occupant’s arrest only if the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.”). The State

2Gaskins’s passenger—a minor—was released to his mother and was not

charged as a consequence of the incident.
5

did not assert that any other theory or exception to the warrant

requirement justified the warrantless search the officers performed.

At the suppression hearing, the State contended the locked safe

was no different from a duffel bag, a backpack, or any other kind of

container encountered during the search of a vehicle. Further, the State

asserted the fact the key was on Gaskins’s keyring indicated he had

access to the safe. Gaskins responded that the locked safe was quite

different from duffel bags or backpacks because it was locked, not merely

closed, clearly manifesting his expectation of privacy in its contents. The

district court denied Gaskins’s motion, concluding the search was a valid

search incident to arrest. The district court did not decide whether any

other exceptions to the warrant requirement supported the search

because the State expressly argued only that the search was valid

because it was incident to arrest. 3

Gaskins was convicted on all three counts following a bench trial

on the minutes of testimony. Gaskins appealed, and we retained the

appeal.

3The officers’ testimony and the county attorney’s legal argument presented at

the suppression hearing confirm the focus on the search-incident-to-arrest exception to
the warrant requirement. The arresting officer testified about the nature of the van’s
passenger compartment, stating the vehicle had no separate trunk compartment.
Further, the searching officer testified the safe was possibly within the reach of anyone
sitting in the driver’s seat. The scope of the passenger compartment and the question
whether an object was within reaching distance of an arrestee are key factors in
analyzing challenges to warrantless searches made incident to arrest. See Gant, 556
U.S. at 339, 129 S. Ct. at 1716, 173 L. Ed. 2d at 493 (“If there is no possibility that an
arrestee could reach into the area that law enforcement officers seek to search, both
justifications for the search-incident-to-arrest exception are absent and the rule does
not apply.”); State v. Olsen, 315 N.W.2d 1, 5 (Iowa 1982) (concluding the search-
incident-to-arrest exception cannot authorize officers to search a vehicle’s trunk
because the trunk is neither the passenger compartment nor within reaching distance
of any occupant). Additionally, while presenting legal argument after all testimony had
been submitted, the county attorney twice stated, unequivocally, that the search clearly
fell into the search-incident-to-arrest exception and did not assert any other exception
to the warrant requirement justified the search in this case.
6

II. The Parties’ Positions.

Gaskins asserts the warrantless search of his locked safe violated

his constitutional rights under the Fourth Amendment to the United

States Constitution and under article I, section 8 of the Iowa

Constitution. In particular, Gaskins contends the search was not

justified by officer safety concerns or by a danger that the safe or its

contents could be destroyed under the circumstances presented here

because the van’s occupants had been removed from the vehicle and

secured in a squad car.

Alternatively, Gaskins contends trial counsel was ineffective.

Specifically, he asserts trial counsel breached an essential duty by not

discovering criticism and debate about the soundness of the Supreme

Court’s holdings in Gant and New York v. Belton, 453 U.S. 454, 101 S.

Ct. 2860, 69 L. Ed. 2d 768 (1981), which delineate the circumstances

under which—consistent with the Fourth Amendment—officers may

conduct a warrantless search of an automobile and its contents incident

to the arrest of an occupant. Gaskins asserts that if trial counsel had

uncovered the substantial debate about those cases, he could have

crafted a much stronger motion to suppress.

The State asserts that existing federal and state court decisions

provide sufficient grounds to affirm the district court’s conclusion that

the warrantless search in this case was a valid search incident to arrest.

III. Scope of Review.

“Because this case concerns the constitutional right to be free from

unreasonable searches and seizures, our review of the district court’s

suppression ruling is de novo.” State v. Watts, 801 N.W.2d 845, 850

(Iowa 2011). “We independently evaluate the totality of the

circumstances found in the record, including the evidence introduced at
7

both the suppression hearing and at trial.” State v. Vance, 790 N.W.2d

775, 780 (Iowa 2010).

We ordinarily consider ineffective-assistance claims in

postconviction-relief proceedings. Id. at 785. We only resolve them on

direct appeal if the record is adequate to address the claim. Id. If the

record is adequate, we review ineffective-assistance claims de novo.

State v. Halverson, 857 N.W.2d 632, 634 (Iowa 2015). When evaluating

ineffective-assistance claims, we apply a two-pronged test: we ask

whether trial counsel breached an essential duty and whether prejudice

resulted from any such breach. Vance, 790 N.W.2d at 785; see

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984); Halverson, 857 N.W.2d at 635.

IV. Analysis.

We conclude the search in this case was not a valid search

incident to arrest. Accordingly, we do not reach Gaskins’s alternative

claim that he received ineffective assistance of counsel.

A. Error Preservation. Gaskins’s motion to suppress raised both

the Fourth Amendment of the United States Constitution and article I,

section 8 of the Iowa Constitution. At the suppression hearing,

Gaskins’s counsel spoke generally about exceptions to the warrant

requirement, without specifying whether he was referring to the United

States Constitution or the Iowa Constitution. The district court’s ruling

only discusses caselaw—from both this court and the United States

Supreme Court—and does not cite either constitution.

The State asserts Gaskins’s mere citation to article I, section 8 in

the motion did not preserve error based on that provision of the Iowa

Constitution because the district court did not rule on it. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
8

doctrine of appellate review that issues must ordinarily be raised and

decided by the district court before we will decide them on appeal.”

(Emphasis added.)). However, we have said:

When there are parallel constitutional provisions in the
federal and state constitutions and a party does not indicate
the specific constitutional basis, we regard both federal and
state constitutional claims as preserved . . . . Even in these
cases in which no substantive distinction had been made
between state and federal constitutional provisions, we
reserve the right to apply the principles differently under the
state constitution compared to its federal counterpart.

King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (citations omitted). We

conclude Gaskins preserved his arguments under the Iowa Constitution.

See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (“If the court’s

ruling indicates that the court considered the issue and necessarily ruled

on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has

been preserved.” (quoting Meier, 641 N.W.2d at 540)); cf. Vance, 790

N.W.2d at 780 (confining analysis to the Fourth Amendment because the

defendant never raised the Iowa Constitution, even perfunctorily).

B. Constitutional Provisions and Interpretive Authority.

Article I, section 8 of the Iowa Constitution provides:

The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable seizures and
searches shall not be violated; and no warrant shall issue
but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons and things to be seized.

Iowa Const. art. I, § 8. This provision “is, of course, nearly identical to

the Fourth Amendment to the United States Constitution . . . . [U]nlike

accepted versions of the Fourth Amendment, article I, section 8 utilizes a

semicolon between the reasonableness clause and the warrant clause.”

State v. Short, 851 N.W.2d 474, 500–01 (Iowa 2014). Members of this

court have disagreed about the semicolon’s significance. On one hand,
9

some have suggested “[t]he semicolon suggests the framers believed that

there was a relationship between the reasonableness clause and the

warrant clause.” Id. at 483. Others believe it may simply be an

“inconsequential punctuation difference.” Id. at 522 (Mansfield, J.,

dissenting).

We do not revisit that debate here. Even “in . . . cases in which no

substantive distinction [appears] between state and federal constitutional

provisions, we reserve the right to apply the principles differently under

the state constitution compared to its federal counterpart.” King, 797

N.W.2d at 571 (emphasis added); accord Short, 851 N.W.2d at 491

(majority opinion); State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013);

see also State v. Roth, 305 N.W.2d 501, 510–11 (Iowa 1981) (McCormick,

J., dissenting) (“Iowa has a proud tradition of concern for individual

rights. We should not be reluctant to show greater sensitivity to the

rights of Iowans under our constitution than the Supreme Court accords

to their rights under the Federal Constitution.”); State v. Eckel, 888 A.2d

1266, 1275 (N.J. 2006) (“Although [Article I, Paragraph 7 of the New

Jersey Constitution] is almost identical to the text of the Fourth

Amendment to the Federal Constitution, we have not hesitated . . . to

afford our citizens greater protection against unreasonable searches and

seizures under Article I, Paragraph 7 than would be the case under its

federal counterpart.”).

Of course, “our independent authority to construe the Iowa

Constitution does not mean that we generally refuse to follow the United

States Supreme Court decisions.” Short, 851 N.W.2d at 490. Rather, it

merely assures that we “exercise . . . our best, independent judgment of

the proper parameters of state constitutional commands,” as we are

constitutionally required to do. Id.; see also State v. James, 393 N.W.2d
10

465, 468 (Iowa 1986) (Lavorato, J., dissenting) (“We push aside our

constitutional responsibilities when we merely look to the Supreme Court

for answers in examining the state constitution.”). 4 As the New Jersey

Supreme Court has explained:

[A]lthough th[e Supreme] Court may be a polestar that
guides us as we navigate the New Jersey Constitution, we
bear ultimate responsibility for the safe passage of our ship.
Our eyes must not be so fixed on that star that we risk the
welfare of our passengers on the shoals of constitutional
doctrine. In interpreting the New Jersey Constitution, we
must look in front of us as well as above us.

State v. Hempele, 576 A.2d 793, 800 (N.J. 1990); accord State v.

Hernandez, 410 So. 2d 1381, 1385 (La. 1982) (“We . . . give careful

consideration to the United States Supreme Court interpretations of

relevant provisions of the federal constitution, but we cannot and should

not allow those decisions to replace our independent judgment in

construing the constitution adopted by the people of Louisana.”); State v.

Rowell, 188 P.3d 95, 99–100 (N.M. 2008) (“We are careful to consider the

reasoning underlying federal constitutional interpretations when

construing our own New Mexico Constitution, but we have declined to

adopt federal constitutional analysis where we found it unpersuasive or

flawed.”); see also Parker v. Commonwealth, 440 S.W.3d 381, 388 (Ky.

2014) (stressing that, although the state rule and federal rule were

coterminous, “when interpreting our own Kentucky Constitution, th[e]

Court is not tethered to the decisions of the U.S. Supreme Court or the

reasoning upon which those decisions are founded”).

4The State urges adoption of “neutral interpretive principles” or “divergence
criteria” for deciding when this court will rely on independent state grounds for its
decisions. We recently addressed and rejected the notion of such criteria in Short, and
do so again here. See Short, 851 N.W.2d at 490–91.
11

C. The Search in This Case. Police searched Gaskins’s vehicle

and opened the safe without a warrant. “A warrantless search is

presumed unreasonable” unless an exception applies. State v. Moriarty,

566 N.W.2d 866, 868 (Iowa 1997); accord State v. Allensworth, 748

N.W.2d 789, 792 (Iowa 2008); State v. Tolsdorf, 574 N.W.2d 290, 292

(Iowa 1998). The only exception to the warrant requirement litigated in

the district court—and thus the only one at issue in this appeal—is

search incident to arrest (SITA). See Vance, 790 N.W.2d at 786–87. “The

[SITA] exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Gant, 556

U.S. at 338, 129 S. Ct. at 1716, 173 L. Ed. 2d at 493. Importantly,

however, “[t]he [SITA] exception to the warrant requirement must be

narrowly construed and limited to accommodating only those interests it

was created to serve.” State v. McGrane, 733 N.W.2d 671, 677 (Iowa

2007); accord Vance, 790 N.W.2d at 786–87; State v. Sterndale, 656 A.2d

409, 410 (N.H. 1995) (noting the proper scope of a SITA “is limited by the

exception’s very specific justifications”); State v. Valdez, 224 P.3d 751,

758–59 (Wash. 2009) (“The [SITA] exception . . . arises from the necessity

to provide for officer safety and the preservation of evidence of the crime

of arrest, and the application and scope of that exception must be so

grounded and so limited.”).

The seminal decision exploring the SITA exception to the warrant

requirement is Chimel v. California, 395 U.S. 752, 762–63, 89 S. Ct.

2034, 2040, 23 L. Ed. 2d 685, 693–94 (1969). Chimel did not involve the

search of a vehicle; rather, police arrested the defendant in his home and

“then looked through the entire three-bedroom house, including the

attic, the garage, and a small workshop.” Id. at 754, 89 S. Ct. at 2035,
12

23 L. Ed. 2d at 688. The Supreme Court explained the search’s wide

sweep rendered it constitutionally invalid:

There is ample justification . . . for a search of the arrestee’s
person and the area “within his immediate control”—
construing that phrase to mean the area from which he
might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for
routinely searching any room other than that in which an
arrest occurs—or, for that matter, for searching through all
the desk drawers or other closed or concealed areas in that
room itself. Such searches, in the absence of well-recognized
exceptions, may be made only under the authority of a
search warrant.

Id. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. In short, the Court

confirmed that allowing officers to perform a SITA of a limited area

“serve[s] the dual purposes of protecting arresting officers and

safeguarding any evidence the arrestee may seek to conceal or destroy.”

Vance, 790 N.W.2d at 786; see Chimel, 395 U.S. at 768, 89 S. Ct. at

2043, 23 L. Ed. 2d at 697.

In Belton, the Supreme Court confronted the question of the extent

to which the Chimel principles should apply in adjudicating a Fourth

Amendment challenge to the search of an automobile conducted incident

to the arrest of an occupant. See Belton, 453 U.S. at 459, 101 S. Ct. at

2863, 69 L. Ed. 2d at 774 (stating the question in that case was “the

proper scope of a search of the interior of an automobile incident to a

lawful custodial arrest of its occupants”). An officer pulled a car over for

speeding and Belton was a passenger in the car. Id. at 455, 101 S. Ct. at

2861, 69 L. Ed. 2d at 772. When the officer approached the car, he

“smelled burnt marihuana and [saw] on the floor of the car an envelope

marked ‘Supergold’ that he associated with marihuana.” Id. at 455–56,

101 S. Ct. at 2862, 69 L. Ed. 2d at 772. He arrested the car’s occupants
13

for possession of marijuana and “then searched the passenger

compartment of the car. On the back seat he found a black leather

jacket belonging to Belton,” and upon opening a zipped jacket pocket he

discovered cocaine. Id. at 456, 101 S. Ct. at 2862, 69 L. Ed. 2d at 772.

Belton moved to suppress the cocaine on the ground that the warrantless

search violated his rights under the Fourth Amendment. Id.

The Court held that “when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may, as a

contemporaneous incident of that arrest, search the passenger

compartment of that automobile.” Id. at 460, 101 S. Ct. at 2864, 69 L.

Ed. 2d at 775. The Court based its conclusion on the notion that the

entire passenger compartment is “generally, even if not inevitably, within

‘the area into which an arrestee might reach.’ ” Id. (quoting Chimel, 395

U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694). But see id. at 466,

101 S. Ct. at 2867, 69 L. Ed. 2d at 779 (Brennan, J., dissenting)

(characterizing this assumption as “fiction”). Further, the Court

concluded that incident to a lawful arrest “the police may also examine

the contents of any containers found within the passenger

compartment.” Id. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775

(majority opinion).

We adopted Belton in 1981. State v. Sanders, 312 N.W.2d 534,

539 (Iowa 1981) (“[W]e believe Belton strikes a reasonably fair balance

between the rights of the individual and those of society. We adopt it

now as our rule.”). However, Belton soon became the subject of

significant criticism. See Vance, 790 N.W.2d at 787–88 (collecting

commentary along with caselaw from multiple states rejecting Belton);

Eckel, 888 A.2d at 1272–73 (“[T]he drumbeat of scholarly opposition to

Belton has remained constant.”); see also, e.g., Wayne R. LaFave, The
14

Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and

“Good Faith”, 43 U. Pitt. L. Rev. 307, 332 (1982) (“[T]here is good reason

to be critical of the Court’s work in Belton); Eugene L. Shapiro, New York

v. Belton and State Constitutional Doctrine, 105 W. Va. L. Rev. 131, 137

(2002) (“Criticism of Belton has been vigorous and sustained.”). So,

“[a]lthough Sanders held Iowa’s constitutional doctrine was the same as

Belton, Sanders was decided before the criticism of Belton began.”

Vance, 790 N.W.2d at 789.

Some members of the Supreme Court became wary of Belton’s

breadth. In 2004, Justice Sandra Day O’Connor expressed concern that,

after Belton, “lower court decisions seem[ed] . . . to treat the ability to

search a vehicle incident to the arrest of a recent occupant as a police

entitlement rather than as an exception [to the warrant requirement].”

Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 2133, 158

L. Ed. 2d 905, 915 (2004) (O’Connor, J., concurring in part). Justice

Antonin Scalia echoed that concern. Id. at 627, 124 S. Ct. at 2134, 158

L. Ed. 2d at 917 (Scalia, J., concurring in the judgment) (“[C]onducting a

[SITA] is not the Government’s right; it is an exception—justified by

necessity—to a rule that would otherwise render the search unlawful.”).

Justice Scalia also noted the justification for a warrantless SITA—“to find

weapons the arrestee might use or evidence he might conceal or

destroy”—is much weaker when a defendant is “handcuffed and secured

in the back of the officer’s squad car.” Id. at 625, 124 S. Ct. at 2133, 158

L. Ed. 2d at 915–16.

Critical commentary on Belton culminated at the Supreme Court in

2009. Gant, 556 U.S. at 350–51, 129 S. Ct. at 1723–24, 173 L. Ed. 2d at

501. In Gant, officers arrested the defendant for driving with a

suspended license, and while he was handcuffed in a patrol car, the
15

officers “searched his car and discovered cocaine in the pocket of a jacket

on the backseat.” Id. at 335, 129 S. Ct. at 1714, 173 L. Ed. 2d at 491.

The Gant Court acknowledged that its decision in Belton had produced

untoward consequences, noting:

The experience of the 28 years since we decided Belton
has shown that the generalization underpinning the broad
reading of that decision is unfounded. We now know that
articles inside the passenger compartment are rarely within
the area into which an arrestee might reach, and blind
adherence to Belton’s faulty assumption would authorize
myriad unconstitutional searches.

Id. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501 (citations omitted)

(internal quotation marks omitted). Further, the Court noted the

testimony of the officer who conducted the warrantless search in Gant

manifested the very concern several justices had raised in Thornton: that

police had come to view vehicle searches as an entitlement, not an

exception. Id. at 336–37, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492

(“When asked . . . why the search was conducted, [the officer] responded:

‘Because the law says we can do it.’ ”).

Gant limited, but did not completely disavow, Belton. See id. at

345–46, 129 S. Ct. at 1720–21, 173 L. Ed. 2d at 497–98 (rejecting a
reading of Belton, not Belton itself). In particular, the Court limited the

circumstances in which a warrantless search of a vehicle incident to

arrest is permitted, because holding otherwise would fail to address “the

concern about giving police officers unbridled discretion to rummage at

will among a person’s private effects.” Id. at 345, 129 S. Ct. at 1720, 173

L. Ed. 2d at 497. Thus, the holding in Gant authorizes officers to search

a suspect’s vehicle incident to the suspect’s arrest “only if the arrestee is

within reaching distance of the passenger compartment at the time of the

search or it is reasonable to believe the vehicle contains evidence of the
16

offense of arrest.” Id. at 351, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501

(emphasis added). In effect, Gant added a third justification under the

Fourth Amendment for searching an automobile incident to the arrest of

a recent occupant: a “more general sort of evidence-gathering” pertaining

to the crime of arrest. Thornton, 541 U.S. at 629, 124 S. Ct. at 2135, 158

L. Ed. 2d at 918; see Gant, 556 U.S. at 343, 129 S. Ct. at 1719, 173 L.

Ed. 2d at 496 (noting the evidence-gathering rationale “does not follow

from Chimel”).

Although the Supreme Court heard numerous calls to revisit

Belton, it did not do so until the Gant decision in 2009. See Vance, 790

N.W.2d at 787–88 (tracing the history of criticism); see also Gant, 556

U.S. at 350–51, 129 S. Ct. at 1723–24, 173 L. Ed. 2d at 501. Similarly,

since the Supreme Court decided Gant in 2009, we have not had

occasion until today to decide whether the protection against warrantless

searches and seizures incident to arrest offered by article I, section 8 of

the Iowa Constitution conforms to the rule announced in Gant. Indeed,

our decisions have cited Gant only twice, and in those cases, it was

tangential to the resolution of the issue before us. Vance, 790 N.W.2d at

789–90 (acknowledging Gant limited Belton and mentioning Gant in the

context of a defendant’s claim that his counsel was ineffective for failing

to research or discover criticism of Belton, but ultimately declining to

rule on the ineffective-assistance claim); see also State v. Baldon, 829

N.W.2d 785, 819 (Iowa 2013) (Appel, J., specially concurring) (citing Gant

as an example of the United States Supreme Court recognizing and

adopting principles from state constitutional jurisprudence). And just as

the Supreme Court revisited the rule previously announced in Belton, we

are free to revisit our prior decisions and determine whether the Iowa

Constitution demands a different standard of protection against
17

warrantless searches incident to arrest. This case presents that

opportunity.

Applying the rule in Belton, we concluded the dual purposes of

promoting officer safety and preventing evidence destruction justified a

warrantless search even when it occurred “after the arrestee ha[d] been

handcuffed and restrained outside the vehicle.” State v. Edgington, 487

N.W.2d 675, 677 (Iowa 1992); see Sanders, 312 N.W.2d at 537, 539.

Courts in some other states reached the same conclusion in lockstep

with Belton. See, e.g., Stout v. State, 898 S.W.2d 457, 459–60 (Ark.

1995) (adopting Belton under the Arkansas Constitution and upholding a

warrantless search of an automobile incident to the arrest conducted

after the defendant was handcuffed and standing on the side of the

highway); State v. Delossantos, 559 A.2d 164, 168 (Conn. 1989) (“We

hold that when police make a lawful custodial arrest of an occupant of

an automobile, and the arrestee is detained at the scene, police may

contemporaneously search without a warrant the interior passenger

compartment of the automobile.”); State v. Charpentier, 962 P.2d 1033,

1034–35, 1037 (Idaho 1998) (adopting Belton under the Idaho

Constitution and applying it in upholding a warrantless search of an

automobile conducted after the defendant was handcuffed and placed in

the patrol car); State v. Rice, 327 N.W.2d 128, 130–31 (S.D. 1982)

(applying Belton and upholding a search even though the defendant “was

not in a position to . . . reach a weapon or remove evidence at the time of

the search”). But all these state court decisions—including our own—

relied on Belton’s “faulty assumption” that the entire passenger

compartment of a vehicle is always within an occupant’s reach. Gant,

556 U.S. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501; see Belton,

453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775. And in Gant,
18

the Court specifically repudiated that assumption, calling it an

unfounded generalization that might “authorize myriad unconstitutional

searches.” Gant, 556 U.S. at 350–51, 129 S. Ct. at 1723, 173 L. Ed. 2d

at 501.

In contrast to the group of states that adopted and followed Belton

in interpreting their state constitutions, several others have departed

from Belton, focusing on the specific and narrow Chimel considerations

underpinning the SITA exception to the warrant requirement. For

example, in Eckel, the New Jersey Supreme Court stated:

Because the [SITA] exception to the warrant requirement was
lim[it]ed for two specific purposes—the protection of the
police and the preservation of evidence—and because neither
purpose can be advanced by searching the vehicle of a
person who effectively is incapacitated, we hold that such a
search is incompatible with . . . the New Jersey Constitution.
To the extent [Belton] has concluded otherwise in
[interpreting] the Federal Constitution, we respectfully part
company with the United States Supreme Court.

Eckel, 888 A.2d at 1266. The New Jersey court rejected Belton because

Belton wrote “out of the [SITA] exception the two Chimel justifications . . .

[and] reached a result that is detached from established Fourth

Amendment jurisprudence.” Id. at 1277. Accordingly, the court held

that “[o]nce the occupant of a vehicle has been arrested, removed and

secured elsewhere, the considerations informing the search incident to

arrest exception are absent and the exception is inapplicable.” Id.

Similarly, the Washington Supreme Court has held that a

warrantless search of a locked container found in an automobile incident

to the arrest of an occupant is only permissible under that state’s

constitution to “preserve officer safety or prevent destruction or

concealment of evidence of the crime of arrest.” Valdez, 224 P.3d at 759.

In other words, warrantless searches of locked containers incident to the
19

arrest of an occupant of a vehicle are permitted under the Washington

Constitution only where Chimel would allow them. Compare id., with

Chimel, 395 U.S. at 768, 89 S. Ct. at 2043, 23 L. Ed. 2d at 697. If

“officers have the opportunity to prevent the individual’s access to the

contents of [a] container so that officer safety or the preservation of

evidence of the crime of arrest is not at risk, there is no justification

under the [SITA] exception to permit a warrantless search of [a] locked

container.” Valdez, 224 P.3d at 759. As the defendant in Valdez had no

access to his vehicle at the time of the search of his locked container

because he was handcuffed and secured in a patrol car, the “evidence

gathered during that search [wa]s therefore inadmissible.” Id. at 753,

760.

The New Hampshire Supreme Court has also departed from Belton

in interpreting that state’s constitution. See Sterndale, 656 A.2d at 409–

10. After an officer stopped Sterndale for speeding, the officer detected

the smell of burnt marijuana emanating from the vehicle. Sterndale

“admitted that she had just smoked a ‘joint,’ or marijuana cigarette.” Id.

at 410. The officer handcuffed the defendant, placed her in his cruiser,

returned to her car, and opened a brown paper bag, in which he found

additional marijuana. Id. The court held the search was not a valid SITA

under the New Hampshire Constitution:

In the instant case, the defendant was secured, in handcuffs,
in the rear of a police cruiser, with two Nashua Police officers
on the scene. . . . [T]he legitimate law-enforcement concerns
underlying the [SITA] exception plainly were not present in
this case. Since the search was made only after the
defendant was securely in custody and unable to gain access
to the vehicle, it was not justifiable as a search incident to
arrest.

Id.
20

Several other courts have focused on the Chimel considerations in

declining to follow Belton when interpreting their states’ constitutions.

See, e.g., Hernandez, 410 So. 2d at 1385 (“[T]he Belton rule can have no

application after an arrestee has been handcuffed and removed from the

scene, foreclosing even the slightest possibility that he could reach for an

article within the vehicle.”); Rowell, 188 P.3d at 101 (“There simply was

no reasonable basis for concluding that this handcuffed defendant locked

inside a patrol car was in any position to escape and get to the contents

of his own car to gain access to any weapons or evidence.”); State v.

Pittman, 127 P.3d 1116, 1121 (N.M. Ct. App. 2005) (“[W]e hold that even

after a valid arrest, one of Chimel’s two rationales must be present before

an officer may search a vehicle without a warrant.”), cert. quashed, 152

P.3d 152 (N.M. 2007); Commonwealth v. White, 669 A.2d 896, 902 & n.6

(Pa. 1995); State v. Bauder, 924 A.2d 38, 47 (Vt. 2007) (rejecting Belton

“in favor of the traditional rule” because “no persuasive evidence or

argument [wa]s offered to demonstrate how defendant—handcuffed in

the back seat of the police cruiser—or his passenger who had left the

scene, presented any form of threat”).

We now agree with the approach taken by the courts that have

rejected the Belton rule that authorized warrantless searches of

containers without regard to the Chimel considerations of officer safety

and protecting evidence. “When lines need to be drawn in creating rules,

they should be drawn thoughtfully along the logical contours of the

rationales giving rise to the rules, and not as artificial lines drawn

elsewhere that are unrelated to those rationales.” Rowell, 188 P.3d at

101; see also Valdez, 224 P.3d at 758 (reminding readers of “the danger

of wandering from the narrow principled justifications of the [SITA]

exception, even if such wandering is done an inch at a time”).
21

Ostensibly, Gant is a limitation on Belton. See Vance, 790 N.W.2d

at 788 (“[Gant] rejected the broad interpretation of Belton and tethered

Belton’s bright-line rule to the dual purposes underlying the search-

incident-to-arrest exception as recognized in Chimel.”). But Gant also

recognized an additional purpose authorizing officers to invoke the SITA

exception and conduct a warrantless search of the auto and containers

within it under the Fourth Amendment if “it is reasonable to believe the

vehicle contains evidence of the offense of arrest.” Gant, 556 U.S. at 351,

129 S. Ct. at 1723, 173 L. Ed. 2d at 501. This additional purpose stands

wholly separate from the justifications originally underlying the SITA

exception. See id. at 343, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496.

We approve Gant’s “reaching distance” rationale as an appropriate

limitation on the scope of searches incident to arrest under article I,

section 8 of the Iowa Constitution because that limitation is faithful to

the underlying justifications for warrantless searches incident to arrest.

However, we decline to adopt Gant’s alternative evidence-gathering

rationale for warrantless searches incident to arrest under the Iowa

Constitution because it would permit the SITA exception to swallow

completely the fundamental textual rule in article I, section 8 that

searches and seizures should be supported by a warrant. In other

words, “use of a [SITA] rationale to sanction a warrantless search that

has nothing to do with its underlying justification—preventing the

arrestee from gaining access to weapons or evidence—is an anomaly.”

Rowell, 188 P.3d at 100; see also State v. Snapp, 275 P.3d 289, 301

(Wash. 2012) (declining to adopt the evidence-gathering rationale under

the state constitution). Although the evidence-gathering rationale

announced in Gant limits the propriety of a warrantless search of an

automobile and containers found within it incident to arrest to those
22

instances when it is reasonable to believe the vehicle contains evidence of

the crime of arrest, construing the exception this broadly “would serve no

purpose except to provide a police entitlement.” Gant, 556 U.S. at 347,

129 S. Ct. at 1721, 173 L. Ed. 2d at 499. Police entitlements are

incompatible with Iowans’ robust privacy rights. See, e.g., Short, 851

N.W.2d at 507 (Cady, C.J., concurring specially) (“[W]e cannot ignore that

our history of robust protection of human rights owes in no small part to

our authority within America’s federalist system to independently

interpret our constitution.”); Baldon, 829 N.W.2d at 803 (holding a

consent provision in a parole agreement does not voluntarily waive

constitutional search and seizure protection under the Iowa

Constitution); State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011)

(concluding consent to search obtained during a traffic stop was invalid

because traffic stops are inherently coercive); State v. Ochoa, 792 N.W.2d

260, 291 (Iowa 2010) (finding invalid a search that “too closely

resemble[d] authority pursuant to a general warrant”).

In declining to adopt Gant’s broad evidence-gathering purpose as a

rationale for warrantless searches of automobiles and their contents

incident to arrest under article I, section 8 of the Iowa Constitution, we

note the historical precedent upon which that rationale relies was

specifically rejected in Chimel. See Chimel, 395 U.S. at 768, 89 S. Ct. at

2042–43, 23 L. Ed. 2d at 696–97; see also Gant, 556 U.S. at 343–44, 129

S. Ct. at 1719, 173 L. Ed. 2d at 496 (relying on Justice Scalia’s

concurrence in Thornton in formulating the evidence-gathering rationale);

Thornton, 541 U.S. at 629, 124 S. Ct. at 2135–36, 158 L. Ed. 2d at 918

(Scalia, J., concurring in the judgment) (collecting cases). We conclude

the SITA exception to the warrant requirement under article I, section 8

of the Iowa Constitution is justified by the State’s interest in preserving
23

evidence from destruction, not merely collecting it expediently. Cf. State

v. Tibbles, 236 P.3d 885, 889 (Wash. 2010) (en banc) (“[W]hatever relative

convenience to law enforcement may obtain from forgoing the burden of

seeking a warrant . . . , we adhere to the view that ‘mere convenience is

simply not enough.’ ” (quoting State v. Patterson, 774 P.2d 10, 12 (Wash.

1989))).

Indeed, the important distinction between the purpose of

preserving evidence and the purpose of collecting evidence in SITA

analysis was evident even before Chimel as the Supreme Court

demonstrated a desire to constrain the scope of the SITA exception under

the Fourth Amendment. Preston v. United States, 376 U.S. 364, 367–68,

84 S. Ct. 881, 883–84, 11 L. Ed. 2d 777, 780–81 (1964). While

recognizing the general parameters of the SITA exception, the Court

noted “these justifications are absent where a search is remote in time or

place from the arrest.” Id. at 367, 84 S. Ct. at 883, 11 L. Ed. 2d at 780.

When a vehicle search “was not undertaken until [defendant] . . . had

been arrested and taken in custody,” there “was no danger that [he]

could have used any weapons in the car or could have destroyed any

evidence of a crime.” Id. at 368, 84 S. Ct. at 883, 11 L. Ed. 2d at 781.

The search performed without a warrant was “simply not incident to the

arrest.” Id. at 367, 84 S. Ct. at 883, 11 L. Ed. 2d at 780–81. We

conclude the Court’s rationale in Preston further supports our

determination that the Gant evidence-gathering rationale is divorced

from the underlying SITA justifications and is repugnant to article I,

section 8 of the Iowa Constitution.

Applying these principles to the facts of this case, we conclude the

search of Gaskins’s locked safe was not a valid SITA under article I,

section 8. Two police officers were on the scene. Although the van had
24

two occupants, both Gaskins and his passenger were secured in a squad

car before the search of the vehicle and the safe were undertaken. The

officer who performed the search testified there was no way Gaskins

could have retrieved anything from the locked safe while in custody in

the squad car. See Pittman, 127 P.3d at 1122 (“Handcuffed and secured

in the patrol car, Defendant had no realistic opportunity to escape,

wrestle the car keys from the officer, rush over to his locked car, unlock

the door, and seize the weapon from under the seat.”); see also Rose v.

Commonwealth, 322 S.W.3d 76, 80 (Ky. 2010) (finding a search of a

vehicle incident to the occupant’s arrest unreasonable when the

occupant was secured in a police cruiser because “there was no

possibility [the occupant] could have gained access to the vehicle to

destroy evidence or access a weapon”); Camacho v. State, 75 P.3d 370,

400–01 (Nev. 2003) (concluding when a defendant was arrested and

placed in handcuffs, it was “extremely unlikely” he could have “reached a

weapon in his vehicle or destroyed or concealed evidence in his vehicle”).

The officers’ safety was not endangered, and Gaskins could only have

reached the vehicle to destroy evidence if he had “the skill of Houdini and

the strength of Hercules.” United States v. Frick, 490 F.2d 666, 673 (5th

Cir. 1973) (Goldberg, J., concurring in part and dissenting in part). We

decline to attribute these mythical qualities to Gaskins.

Because we conclude the search was not a valid SITA under article

I, section 8 of the Iowa Constitution, the safe’s locked status does not

control our decision. See Perez v. People, 231 P.3d 957, 962 (Colo. 2010)

(“[A] container cannot be accessed if the vehicle containing it cannot be

searched . . . .”). We acknowledge that some other courts have

concluded officers can open locked containers during a SITA. See, e.g.,

United States v. Vinton, 594 F.3d 14, 26 (D.C. Cir. 2010) (briefcase);
25

United States v. Thomas, 11 F.3d 620, 624–25, 628 (6th Cir. 1993) (safe);

United States v. McCrady, 774 F.2d 868, 871–72 (8th Cir. 1985) (glove

compartment); People v. Tripp, 715 N.E.2d 689, 698 (Ill. App. Ct. 1999)

(footlocker); Pack v. Commonwealth, 368 S.E.2d 921, 923 (Va. Ct. App.

1988) (luggage). But if we focused here on the fact the safe was locked,

we would be considering only a very narrow spatial question while

presuming the officers could permissibly search the van under the SITA

exception to article I, section 8 once Gaskins and his passenger were

secured. This we decline to do.

Although we reject Gant’s evidence-gathering rationale for

warrantless searches incident to arrest under the Iowa Constitution, we

of course do not reject the SITA exception entirely. Our decision today

does not preclude a warrantless SITA under circumstances in which the

security of an arresting officer is implicated, see Tolsdorf, 574 N.W.2d at

291, or when the vehicle may reasonably be suspected to contain volatile

chemicals, see State v. Ferguson, 128 P.3d 1271, 1275 (Wash. Ct. App.

2006), or when the arrested person is within reach of contraband and

thus able to attempt to destroy or conceal it. We leave for another day

any questions related to these or similar scenarios in which the dual

purposes of the SITA exception are supported in the record.

We are sensitive to the State’s policy concerns, but we conclude

they do not justify the warrantless search incident to arrest in this case.

For example, the State contends obtaining a warrant in the field is not an

instantaneous proposition, especially when—as in this case—a traffic

stop occurs at a late hour, making it less convenient to approach a

magistrate and request a warrant immediately. We acknowledge the

officers likely would not have obtained a search warrant instantaneously,

had they requested one. Yet, any inconvenience resulting from the need
26

to request and obtain a search warrant at the late hour does not defeat

the protection offered by article I, section 8 because

constitutional protections do not simply fade away with the
setting of the sun. The prohibition against unreasonable
searches safeguards people . . . at all times. We cannot
conclude that the validity of a warrantless search could turn
solely on the time of day that search was conducted.

State v. Elison, 14 P.3d 456, 471 (Mont. 2000).

Nonetheless, the State continues, a child could have gained access

to the drugs and the gun in Gaskins’s vehicle had it been left unattended

on a Davenport street while officers obtained a warrant. Further, the

State asserts a warrant requirement in this instance puts a strain on

police resources, because one officer would have to stay with the vehicle

while another traveled to get the magistrate’s approval. However, these

concerns are premised on the notion the vehicle would remain on the

street. Because it was impounded, both of these dangers are more

imaginary than real.

Lastly, the State contends, the public sees no benefit in exchanging

an immediate warrantless search for an impoundment and later search

authorized by warrant. We conclude this assertion misses the mark.

The protections of article I, section 8 against warrantless searches are

not meant to benefit the public generally. They are meant to protect

individual citizens and their reasonable expectations of privacy. See

Ochoa, 792 N.W.2d at 274–75 (“[I]t is clear that the Iowa framers placed

considerable value on the sanctity of private property.”); cf. McClurg v.

Brenton, 123 Iowa 368, 371, 98 N.W. 881, 882 (1904) (“The right of the

citizen to occupy and enjoy his home . . . is embodied in every bill of

rights defining the limits of government power in our own republic.”

(Emphasis added.)). As we explained exactly one hundred years ago:
27
[T]he Constitution [is not] a public enemy whom judges are
charged to disarm whenever possible. It is the protector of
the people, placed on guard by them to save the rights of the
people against injury . . . . To hold that attack upon it is for
the public good is to commend the soldier for tearing down
the rampart which enables him to sleep in safety.

Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 272, 154 N.W. 1037,

1047 (1915).

In sum, we overrule Sanders because we conclude Belton no longer

sets forth the proper scope of the SITA exception under the Iowa

Constitution. Instead, the SITA exception to the warrant requirement

under article I, section 8 is tethered to its original underlying dual

justifications. When we apply those justifications in this case, we

conclude the search of Gaskins’s van and safe was not a valid

warrantless SITA under the Iowa Constitution because at the time the

police officer conducted it there was no danger to the officer or likelihood

that Gaskins could access the vehicle to obtain a weapon or destroy

evidence. Of course, our holding that the warrantless search of the van

was not justified under article I, section 8 as a SITA does not mean the

van was immune from search; our holding “is instead that a warrant is

generally required before such a search.” Riley v. California, ___ U.S. ___,

___, 134 S. Ct. 2473, 2493, 189 L. Ed. 2d 430, 451 (2014).

V. Conclusion.

“The word ‘automobile’ is not a talisman in whose presence the

[constitutional protection against warrantless searches and seizures]

fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443,

461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971). That sentiment

applies with equal force to article I, section 8 of the Iowa Constitution.5

5We are mindful that our recent article I, section 8 decisions have received
criticism because they diverge from the Supreme Court’s interpretation of the Fourth
28

Because Gaskins could not access anything inside the vehicle or the

locked safe when the search occurred, the search of the safe was not a

valid SITA. Accordingly, the State was required to obtain a warrant

before searching the van and the safe. Because it did not do so, the

district court should have granted Gaskins’s motion to suppress. We

reverse Gaskins’s conviction and remand for proceedings consistent with

this opinion.

REVERSED AND REMANDED.

Cady, C.J., and Wiggins and Appel, JJ., join this opinion. Cady,

C.J., files a separate concurring opinion in which Wiggins, J., joins.

Appel, J., files a separate concurring opinion in which Cady, C.J., and

Wiggins, J., join. Waterman, J., files a dissenting opinion in which

Mansfield and Zager, JJ., join. Zager, J., files a dissenting opinion in

which Waterman and Mansfield, JJ., join.

___________________
Amendment. See, e.g., Short, 851 N.W.2d at 515 (Waterman, J., dissenting) (“Revisiting
settled precedent whenever four justices of this court find prior cases ‘unpersuasive’
leads to serious and troubling repercussions.”); Baldon, 829 N.W.2d at 837 (Mansfield,
J., dissenting) (“I have serious concerns about an approach that treats a United States
Supreme Court decision as just another dish on the menu.”). However, the notion that
any departure from precedent is problematic is a non sequitur. The Supreme Court has
revised its understanding of the SITA exception over time. Compare Preston, 376 U.S.
at 367–68, 84 S. Ct. at 883–84, 11 L. Ed. 2d at 781, with Gant, 556 U.S. at 350–51, 129
S. Ct. at 1723, 173 L. Ed. 2d at 500–01. Today, we merely do the same. We are not
forever confined to the analysis our predecessors undertook, because no supreme court
is—nor should it be.
29
#13–1915, State v. Gaskins

CADY, Chief Justice (concurring specially).
I concur in the opinion of the majority. All searches must be

reasonable, and reasonableness must both justify the search and

constrain its scope. See State v. King, ___ N.W.2d ___, ___ (Iowa 2015).

Under the facts of this case, the justification for permitting a warrantless

search incident to arrest does not apply to a locked safe inside an

unoccupied vehicle.

Additionally, a recognized exception to the warrant requirement

cannot live beyond the life of the justification responsible for its

existence. The automobile exception to the warrant requirement was

created by the United States Supreme Court ninety years ago during

Prohibition. See Carroll v. United States, 267 U.S. 132, 153–54, 45 S. Ct.

280, 285, 69 L. Ed. 543, 551 (1925). The justification for the warrantless

search was grounded in the practical problems for police of obtaining a

search warrant presented by the mobility of a vehicle. Id. at 267 U.S. at

153, 45 S. Ct. at 285, 69 L. Ed. at 551 (noting the vehicle could be

moved out of the jurisdiction while the warrant was being sought). The

need for the automatic nature of this exigency justification, however, may

be affected by the changing technology that is speeding up the warrant

process. While a vehicle remains mobile, the Iowa court system is now

the first court system in the nation to be totally electronic for all users at

all levels. Court users can electronically access courts, and a police

officer now has the capability to access the court system from the

computer in a police vehicle to request a search warrant based on

probable cause at all times of the day and night. In the future, warrants

will likely be received within a short period of time during the course of a

roadside encounter.
30

An automatic exception to the warrant requirement, particularly

one based on exigency, must account for the new world of technology,

and must not continue to exist simply because it existed in the past. In

some instances, this new world may require movement from an

automatic exigency to the standard exigent-circumstances requirement

in which the rapid nature of occurrences precluding the wait for a

warrant must be explained on a case-by-case basis.

Wiggins, J., joins this special concurrence.
31

#13–1915, State v. Gaskins

APPEL, Justice (concurring specially).

I join the court’s opinion in this very sensitive area of state

constitutional law involving a traffic stop and a subsequent search. 6 I

write separately to explore some of the issues raised in the dissent.

First, I briefly review the merits of the court’s opinion regarding the

search-incident-to-arrest issue raised in this case. Second, I review the

merits of the State’s “neutral criteria” approach to state constitutional

law proposed by the dissent. Third, in light of the discussion of the

neutral criteria, I examine the dissent’s treatment of the automobile

exception under the Iowa Constitution. Along the way, I contrast the

dissent’s approach to the state constitutional issue, which I assume

applies its neutral criteria, with an approach based on analysis of the

fidelity of the automobile exception to the constitutional underpinnings

of article I, section 8 of the Iowa Constitution.

6The consistency of traffic stops with constitutional requirements has been the
subject of much contemporary debate in light of the United States Supreme Court’s
evolving approach. In Whren v. United States, the United States Supreme Court held
that a citizen could not challenge a traffic stop based upon the subjective views of a
police officer. 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 97–98
(1996). Then, in Atwater v. City of Lago Vista, the United States Supreme Court held
that a citizen could be arrested for a minor traffic violation. 532 U.S. 318, 354, 121 S.
Ct. 1536, 1557, 149 L. Ed. 2d 549, 577 (2001). Because of the scope of arrest power
and the difficulty in challenging the validity of an arrest, the search-incident-to-arrest
doctrine has become a controversial issue. See State v. Pals, 805 N.W.2d 767, 772–73,
775–77 (Iowa 2011); David A. Harris, The Stories, the Statistics, and the Law: Why
“Driving While Black” Matters, 84 Minn. L. Rev. 265, 312–19 (1999). See generally
Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998). The
importance of the issues surrounding searches incident to arrest in the context of
automobile stops is highlighted by Justice Scalia in Thornton v. United States, who
observed that such searches are “legion.” 541 U.S. 615, 628, 124 S. Ct. 2127, 2135,
158 L. Ed. 2d 905, 917 (2004) (Scalia, J., concurring in the judgment).
32

I. Arguments on the Merits of Search Incident to Arrest.

The court’s opinion addresses the search-incident-to-arrest issue

under article I, section 8 of the Iowa Constitution with thoroughness and

precision. It is a model of scholarship and clear writing. And, it is

wholly loyal to basic principles of search and seizure law under article I,

section 8 of the Iowa Constitution. I write separately on the search-

incident-to-arrest issue only to make a few points.

To the extent the dissent relies on “inconvenience,” there is, of

course, a degree of inconvenience in requiring a warrant in this case.

That much must be conceded. In fact, the warrant requirements of

article I, section 8 of the Iowa Constitution generally are inconvenient

provisions. If inconvenience were enough to defeat the assertion of

constitutional rights, however, the warrant requirement would be

meaningless, as would all the other inconvenient provisions in article I of

the Iowa Constitution, such as the right to speedy trial, the right to be

informed of the accusation, the right to confront witnesses, the right to

compulsory process, and the right to have the assistance of counsel.

Iowa Const. art. I, § 10.

The very purpose of constitutional provisions, however, is to

prevent current practical considerations from eviscerating “inalienable”

constitutional rights. Id. art. I, § 1. History does, of course, have models

in which current practical considerations proceed without inconvenient

individual protections. “[T]he mere fact that law enforcement may be

made more efficient can never by itself justify disregard” of constitutional

search and seizure requirements. Mincey v. Arizona, 437 U.S. 385, 393,

98 S. Ct. 2408, 2414, 57 L. Ed. 2d 290, 301 (1978).

In any event, even on a pragmatic level, while it may be somewhat

inconvenient, the notion that obtaining a warrant is burdensome is no
33

longer sustainable. At the time Carroll v. United States was decided, it

might have taken several hours or even days to obtain a warrant. 267

U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (establishing the

automobile exception, creating a rule that presumes exigency based

upon the mobility of an automobile suspected to contain evidence of

criminal activity or contraband); see Carol A. Chase, Privacy Takes a

Back Seat: Putting the Automobile Exception Back on Track After Several

Wrong Turns, 41 B.C. L. Rev. 71, 87–89 (1999) [hereinafter Chase]. But,

things have changed. As early as 1972, police in California obtained a

warrant to search a home in twelve minutes. People v. Aguirre, 103 Cal.

Rptr. 153, 155 (App. Dep’t Super. Ct. 1972). In 1998, an Arizona state

court noted that a police department was able to get a warrant in as little

as fifteen minutes. State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App.

1998). Closer to home, a federal trial court in the southern district of

Iowa noted that it takes as little as twenty minutes to obtain a telephonic

search warrant. United States v. Baker, 520 F. Supp. 1080, 1084 (S.D.

Iowa 1981). I agree with Chief Justice Cady’s special concurrence that in

this day and age, with all of our marvelous technology, there is no reason

why police officers with probable cause cannot obtain a search warrant

with expedition. If a warrant cannot be expeditiously obtained, the

problem is not with the warrant requirements of article I, section 8, but

is likely an administrative problem that needs to be resolved by local

authorities.

The dissent stresses the need for a bright-line rule in this case.

The need for “bright-lines” is a good slogan, but the question of a bright-

line poses a number of difficult problems. At the outset, some problems,

including those of constitutional dimension, may not be amenable to a

bright-line approach. For instance, the question of probable cause must
34

be based on the totality of the circumstances and all legitimate

inferences. A set of bright-line rules would be of no help and would do

some harm. Similarly, in a civil context, the Restatement (Third) of Torts

rejects bright-line rules in negligence cases with respect to duty and

scope of duty because of the tremendous factual variation in negligence

cases that defy rational categorization. See Thompson v. Kaczinski, 774

N.W.2d 829, 834–35 (Iowa 2009) (citing Restatement (Third) of Torts:

Liab. for Physical Harm §§ 6, 7 (Proposed Final Draft No. 1, 2005)). A

bright-line rule favoring bright-lines is a bad rule.

In addition, even if the subject matter appears amenable to a

bright-line rule, the rule must be properly constructed and placed. A

bright-line rule that tramples on constitutional rights may be crystal

clear and plainly unlawful. In constitutional law, crafting an appropriate

bright-line rule and putting it in the right place is a delicate matter.

While a bright-line rule may be promoted on grounds of clarity, one must

be alert to the possibility that the placement of the bright-line—where

you draw the line, to use a colloquial phrase—may effectuate a

significant and even dramatic shift in substantive law.

The Supreme Court’s effort to establish bright-line rules in the

area of search-incident-to-arrest cases illustrates the difficulty. The

Supreme Court attempted to draw and place a bright-line in Marron v.

United States, 275 U.S 192, 199, 48 S. Ct. 74, 77, 72 L. Ed. 231, 238

(1927), then moved it four years later in Go-Bart Importing Co. v. United

States, 282 U.S. 344, 358, 51 S. Ct. 153, 158, 75 L. Ed. 374, 383 (1931),

then modified it again in Harris v. United States, 331 U.S. 145, 169, 67

S. Ct. 1098, 1110, 91 L. Ed. 1399, 1415–16 (1947), and revised it again

in United States v. Rabinowitz, 339 U.S. 56, 62–63, 70 S. Ct. 430, 434,

94 L. Ed. 653, 658–59 (1950), which was then overruled in part by
35

Chimel v. California, 395 U.S. 752, 768, 89 S. Ct. 2034, 2042–43, 23 L.

Ed. 2d 685, 696–97 (1969), which was itself modified in New York v.

Belton, 453 U.S. 454, 459–60, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768,

774–75 (1981), which was undercut in Thornton v. United States, 541

U.S. 615, 621–22, 124 S. Ct. 2127, 2131–32, 158 L. Ed. 2d 905, 913–14

(2004), and finally revised again in Arizona v. Gant, 556 U.S. 332, 343–

44, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485, 496–97 (2009). As one of

the leading constitutional scholars has observed, “What renders

substantive fourth amendment law incomprehensible, however, is not

the lack of categorical rules but too many of them.” Albert W. Alschuler,

Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 287

(1984).

In any event, this case has a rule that strikes me as pretty bright:

namely, that when a locked container in an automobile is plainly out of

the reach of an arrested person, who is handcuffed and sitting in the

back of a police car, and the person’s confederates are similarly removed

from the proximity of the locked container, the police may not conduct a

search incident to arrest without a warrant.

Importantly, the rule in this case is drawn in the right place. The

placement of the line in the court’s opinion is required by the principle of

the proportionality rule, which is a central component of search and

seizure law under article I, section 8. The theory of the search-incident-

to-arrest exception to the warrant requirement, which is not challenged

in this case, generally allows police to search an arrested person and

areas within the arrested person’s reach in order to prevent the arrestee

from seizing a weapon or destroying evidence. See State v. McGrane, 733

N.W.2d 671, 677 (Iowa 2007). The scope of the exception to the warrant

requirement, therefore, must be limited to those situations in which an
36

arrestee might seize a weapon or destroy evidence. See id. However,

when the suspect is handcuffed in the police car and his confederates

are also removed from the area or thing to be searched, the search-

incident-to-arrest exception simply does not apply. To allow such a

search would violate the proportionality requirement of search and

seizure law. On the merits, the court’s opinion is spot on.

While the dissent claims to advocate bright-line rules, such

advocacy is, to some extent, inconsistent with its strong preference for

federal authority, which seems to be implicit in the neutral criteria

argument it advances. For instance, in Schneckloth v. Bustamonte, the

United States Supreme Court rejected a bright-line requirement of

knowing consent in favor of a “blender” method of constitutional

adjudication in which all the circumstances present are thrown into a

blender like fruits and vegetables, the blender is turned on high, and

judges rule based upon a judicial taste test. 412 U.S. 218, 225–26, 93

S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 861–62 (1973). Some like it sweet,

some like it sour, some like it bitter. With the application of Schneckloth,

you are likely to learn more about the world view of the judge—

specifically, the judge’s philosophy of language and knowledge, and

acceptance (or rejection) of principles of social psychology—than the true

nature of the consent. Under the theory of the dissent, the neutral

criteria would be employed as a barrier to prevent the court from

adopting a different, more predictable, and at least arguably better,

approach to the problem. As will be seen below, however, the central

criteria to determine the proper approach under the Iowa Constitution

should not be compliance with some kind of artificial checklist or neutral

criteria designed to inhibit this court’s range of constitutional options

under the Iowa Constitution. Instead, the court should use ordinary
37

tools of constitutional interpretation, well known to lawyers and taught

at every law school, to determine which approach to a particular

constitutional issue is more persuasive and demonstrates overall fidelity

to the underlying constitutional values.

Another issue in the case is officer safety. The United States

Supreme Court has traditionally been extremely attentive to issues of

officer safety. The high court has recognized the lack-of-safety concern

in cases like this one. See, e.g., Chimel, 395 U.S. at 753–54, 763, 89

S. Ct. 2035, 2040, 23 L. Ed. 2d at 688, 694 (finding risk that handcuffed

suspect in his residence might escape and seize a weapon in next room

was insufficient to justify search). In Thornton, Justice Scalia declared

that for an arrested person in a squad car to be a threat, he or she must

have “ ‘the skill of Houdini and the strength of Hercules.’ ” 541 U.S. at

626, 124 S. Ct. at 2134, 158 L. Ed. 2d at 916 (Scalia, J., concurring in

the judgment) (quoting United States v. Frick, 490 F.2d 666, 673 (5th Cir.

1973) (Goldberg, J., concurring in part and dissenting in part)). Further,

Justice Scalia noted the government was unable to produce even a single

example between 1990 and 2003 of a handcuffed arrestee retrieving

weapons or evidence from his nearby vehicle. Id. In Gant, Justice Scalia

referred to Belton’s reasoning as “fanciful reliance upon officer safety.”

556 U.S. at 353, 129 S. Ct. at 1725, 173 L. Ed. 2d at 502 (Scalia, J.,

concurring). I think these observations are equally applicable in this

case.

II. Analysis of Neutral Criteria in State Constitutional
Adjudication.

A. Current Status of Iowa Law. In State v. Ochoa, we stated that

in considering search and seizure issues under article I, section 8 of the

Iowa Constitution, “The degree to which we follow United States Supreme
38

Court precedent, or any other precedent, depends solely upon its ability

to persuade us with the reasoning of the decision.” 792 N.W.2d 260, 267

(Iowa 2010). The principle that United States Supreme Court opinions

provide guidance only based upon their persuasive power was endorsed

in State v. Baldon, 829 N.W.2d 785, 790 (Iowa 2013). In that case, we

cited Ochoa with approval in addition to citing an early search and

seizure case rejecting the exclusionary rule adopted by the United States

Supreme Court. Id. (citing Ochoa, 792 N.W.2d at 281–86, 287 n.91;

State v. Tonn, 195 Iowa 94, 104–05, 191 N.W. 530, 535–36 (1923)

abrogated on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81

S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1089–90 (1961)). 7

In State v. Short, we again discussed at length the rationale for

independent state constitutional adjudication under article I, section 8.

851 N.W.2d 474, 481–92 (Iowa 2014). We reaffirmed the approach of

Ochoa and Baldon, and rejected the notion that a departure from federal

precedent could occur only if certain criteria were met. Id. at 490–92.

In Short, we recognized that historically the development of

independent state constitutional law has not been universally celebrated

and has occasionally drawn “bitter, accusatorial dissent[s].” Id. at 486
(internal quotation marks omitted). Citing a New Hampshire case, we

noted that “ ‘heightened rhetoric adds nothing to the jurisprudence of

7In Tonn, this court embraced a stricter approach to search and seizure under
the Iowa Constitution than federal law at the time of the decision. 195 Iowa at 104–07,
191 N.W. at 535–36. This case makes the powerful point that independent state
constitutional law is neither conservative nor liberal. It simply preserves what the
United States Supreme Court has referred to as our “free and unfettered” authority in
interpreting our state constitution. Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60
S. Ct. 676, 679, 84 L. Ed. 920, 924 (1940). The Tonn court did not use criteria to
depart from federal precedent, but found its approach more persuasive. 195 Iowa at
100–07, 191 N.W. at 533–36.
39

our State.’ ” Id. (quoting State v. Canelo, 653 A.2d 1097, 1106 (N.H.

1995) (Johnson, J., concurring specially)). We further cited a former

president of the American Bar Association, who noted that

“ ‘[i]ntemperate, inaccurate, and emotional criticism . . . undermines

public confidence in the impartiality of the judiciary and hence its

independence.’ ” Id. at 506 (alteration in original) (quoting Alfred P.

Carlton Jr., Preserving Judicial Independence—An Exegesis, 29 Fordham

Urb. L.J. 835, 841 (2002)). Notwithstanding the dissents, we cited

G. Alan Tarr, a leading scholar in the field, who, after a comprehensive

review of the authorities, declared, “the concern about the legitimacy of

relying on state constitutional guarantees ‘has largely been put to rest.’ ”

Id. at 486 (quoting G. Alan Tarr, Understanding State Constitutions 169

(1998) [hereinafter Tarr]). 8

Our approach to independent state constitutional law is similar to

that adopted in a number of jurisdictions. See, e.g., Gerawan Farming,

Inc. v. Lyons, 12 P.3d 720, 751–52 (Cal. 2000) (noting Supreme Court

decisions are given voluntary respectful consideration); State v. Campbell,

759 P.2d 1040, 1044 n.7 (Or. 1988) (noting there is no presumption that

interpretations of the United States Supreme Court are correct under the
state constitution); State v. Tiedmann, 169 P.3d 1106, 1114 (Utah 2007)

(“There is no presumption that federal construction of similar language is

correct.”). As noted by Tarr, rulings by the Supreme Court “do not

constitute authoritative pronouncements but are merely accounts of

constitutional provisions entitled to respectful consideration by state

8The dissent quotes Tarr who summarizes arguments about legitimacy that have
been raised in the past, but omits his conclusion that the concern “has largely been put
to rest.” Tarr at 169.
40

judges independently seeking the meaning of their state constitutions.”

Tarr at 207.

As noted by Robert Williams, calls for neutral criteria rest on a

faulty premise. Robert F. Williams, The Law of American State

Constitutions 148 (2009) [hereinafter Williams]. The premise is that the

constitutional decisions of the United States Supreme Court are

somehow presumptively correct and should generally be adopted by state

supreme courts. See id. This premise is nowhere supported in the

history or text of the Iowa or Federal Constitutions or in the structure of

the federal system. As noted by Justice Stevens, the presumption of

correctness of United States Supreme Court decisions with respect to

state constitutional issues arises from a “misplaced sense of duty.”

Delaware v. Van Arsdall, 475 U.S. 673, 699, 106 S. Ct. 1431, 1445, 89

L. Ed. 2d 674, 696 (1986) (Stevens, J., dissenting). In Short, we cited

Williams in supporting the Ochoa holding that in the development of

independent state constitutional law, the value of federal precedent

depended solely upon its persuasive force. 851 N.W.2d at 481, 490; see

State v. Briggs, 199 P.3d 935, 942 (Utah 2008) (noting a state court does

not presume a federal interpretation is correct); see also Campbell, 759

P.2d at 1044 n.7 (same); Tiedmann, 169 P.3d at 1114 (same).

The dissent does not believe the approach in Ochoa, Baldon, and

Short is entitled to stare decisis, nor does it think the approach in this

case is entitled to stare decisis. 9 The operative rule, apparently, is that

9There is a substantial debate in the literature as to whether and the degree to
which stare decisis applies to constitutional interpretation. See Jack L. Landau, Some
Thoughts About State Constitutional Interpretation, 115 Penn St. L. Rev. 837, 867–68
(2011) [hereinafter Landau]. As noted by Landau, some scholars say the doctrine has
no application to constitutional questions, others say it has less application, and still
others say it is fully applicable. Id. & nn. 113–15. Compare Gary Lawson, The
Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 24 (1994) (noting
41

cases the dissent agrees with are entitled to stare decisis, but cases that

it disagrees with are not. Although the dissent seeks to appropriate the

term stare decisis for its own use, the dissent in this case does not honor

its principles. Even though the court has, once again in this case,

rejected the neutral-criteria doctrine the State seeks to advance, the

dissent does not take note of that. It chooses to give legal advice to the

State, encouraging it to relitigate the losing issue again and again. A

reading of the four dissents in Pals, Baldon, Short, and this case

demonstrates the doctrine of stare decisis is not at work. 10 Instead, we

see its antithesis, the doctrine of perpetual dissent.

___________________
that “the practice of following precedent is not merely nonobligatory, or a bad idea,” it is
unconstitutional), with Richard H. Fallon, Jr., Stare Decisis and the Constitution: An
Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 572 (2001) [hereinafter
Fallon] (emphasizing stare decisis “is a doctrine of constitutional magnitude”). Landau
asserts “in the case of state constitutional interpretation, the pull of stare decisis may
not be as strong as it is in other contexts.” Landau, 115 Penn St. L. Rev. at 838. In
addition, the doctrine of stare decisis is fairly complex, with a variety of theories
including a “mistake approach,” a “prudential approach,” and a “special justification
approach.” Steven J. Burton, The Conflict Between Stare Decisis and Overruling in
Constitutional Adjudication, 35 Cardozo L. Rev. 1687, 1690 (2014) (internal quotation
marks omitted). Or, as noted by Professor Fallon, “stare decisis presents constitutional
puzzles.” Fallon, 76 N.Y.U. L. Rev. at 596.
10To the extent the dissent claims to prefer a strong stare decisis doctrine, such
an approach would be inconsistent with the weak stare decisis employed by the United
States Supreme Court in Citizens United v. Federal Election Commission. Compare 558
U.S. 310, 362–65, 130 S. Ct. 876, 912–13, 175 L. Ed. 2d 753, 797–99 (2010) (overruling
twenty-year-old precedent finding it was “not well reasoned”), with id. at 408–14, 130 S.
Ct. at 938–42, 175 L. Ed. 2d at 826–29 (Stevens, J., concurring in part and dissenting
in part) (noting majority’s weak reliance on claims of stare decisis). The United States
Supreme Court similarly employed weak stare decisis adherence in National Federation
of Independent Business v. Sebelius. Compare 567 U.S. ___, ___, 132 S. Ct. 2566, 2586–
91, 183 L. Ed. 2d 450, 474–80 (2012) (holding the Commerce Clause does not support
the individual mandate, as the Court’s precedents describe the power as reaching only
“activity,” and the individual mandate “does not regulate existing commercial activity”),
with id. at ___, 132 S. Ct. at 2609, 183 L. Ed. 2d at 499–500 (Ginsburg, J., concurring
in part, concurring in the judgment in part, and dissenting in part) (noting the
majority’s “crabbed reading of the Commerce Clause . . . should not have staying
power”). If one were consistent, the dissent would need to apply its own criteria
approach to justify its departure from these precedents.
42

B. Criteria in State Constitutional Interpretations. A number

of state supreme courts have announced they may use certain criteria in

evaluating claims under state constitutional law. The three leading cases

describing criteria are State v. Hunt, 450 A.2d 952 (N.J. 1982),

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), and State v.

Gunwall, 720 P.2d 808 (Wash. 1986) (en banc). A number of other

states, often citing these cases, have indicated the usefulness of criteria

in state constitutional adjudication. A number of these cases are

collected in the dissent.

The criteria in these states vary somewhat but have some things in

common. In particular, the criteria usually include constitutional text,

constitutional history, and precedents in other state courts, as among

the factors that may be considered in independent state constitutional

analysis. See, e.g., Hunt, 450 A.2d at 955; id. at 965–67 (Handler, J.,

concurring); Edmunds, 586 A.2d at 895; Gunwall, 720 P.2d at 811.

State supreme courts that have ventured into announcing criteria

have often subsequently faced battles over what the criteria mean. See

Williams at 150–62 (citing examples of state experiences with criteria

approaches). A critical question is whether the criteria are hard

substantive criteria or soft advocacy criteria. Hard substantive criteria

are criteria designed to erect a barrier to independent state constitutional

adjudication and give rise to a presumption that the federal approach

should be adopted absent a demonstration by the proponent of a

divergent state constitutional rule that most or all of the criteria have

been met. In other words, state constitutional law independent of federal

precedent is governed by an “ironclad checklist,” and when the United

States Supreme Court changes course, the state court must follow

unless the requirements of a thread-the-needle checklist have been met.
43

See People v. Scott, 593 N.E.2d 1328, 1347 (N.Y. 1992) (Kaye, J.,

concurring).

Soft advocacy criteria, however, are merely designed to improve the

quality of advocacy by encouraging the parties to consider constitutional

questions from a number of different points of view. Many state courts

and state supreme court justices have bemoaned the lack of thorough

briefing of state constitutional issues and have sought to use criteria to

enhance the quality of advocacy. See, e.g., State v. Morales, 657 A.2d

585, 589 & n.10 (Conn. 1995) (requiring counsel to use stated

nonexclusive criteria when raising state constitutional claims).

The battle over whether criteria should be considered hard

substantive criteria or soft advocacy criteria may be seen in two of the

leading criteria states, New Jersey and Washington. In New Jersey, for

instance, the meaning of the Hunt factors was a matter of contest from

the very beginning. Justice Handler and Justice Pashman battled from

the get-go over whether the criteria created a presumption of the

correctness of federal law. Hunt, 450 A.2d at 960 & n.1 (Pashman, J.,

concurring). In Washington, the battle over the meaning of the Gunwall

criteria extended over a period of many years. See Hugh D. Spitzer, New

Life for the “Criteria Tests” in State Constitutional Jurisprudence: “Gunwall

is Dead—Long Live Gunwall,” 37 Rutgers L.J. 1169, 1199 (2006)

[hereinafter Spitzer] (suggesting the Gunwall criteria as a barrier are

“dead” and the Gunwall criteria as nonexclusive suggestions for advocacy

“live”). If we were to adopt criteria for state constitutional interpretation,

does anyone doubt there would be a battle royale over their meaning and

application?

In the end, however, many of the states have clearly embraced a

soft advocacy approach to their criteria. An indication of the dominance
44

towards this approach is the increasing reference to the criteria as

“nonexclusive.” See, e.g., Gunwall, 720 P.2d at 811 (noting the factors

are “nonexclusive”). Listing criteria as nonexclusive does seem to

indicate they are suggestions rather than mandatory requirements.

Further, the Pennsylvania Supreme Court has declared the

Edmunds factors are not a mandate that a decision recognizing

heightened protections utilize the criteria but instead are intended as a

guide for litigants. Commonwealth v. Shaw, 770 A.2d 295, 298 n.2 (Pa.

2001). In the state of Washington, after several decades of litigation, a

commentator has concluded that the Gunwall factors have been made so

flexible and so encompassing that they have simply merged with the

ordinary principles of constitutional litigation. See Spitzer, 37 Rutgers

L.J. at 1184–87.

Hard or soft, other states have used criteria so open-endedly they

approach normal rules of constitutional adjudication. For example, in

State v. McMurray, a case cited by the dissent, the Minnesota Supreme

Court noted that under circumstances when the state and federal

constitutions use substantially the same language, additional state

protection may be afforded,

(1) when the United States Supreme Court has made a sharp
or radical departure from its previous decisions and we
discern no persuasive reason to follow such a departure; (2)
when the Court has retrenched on a Bill of Rights issue; or
(3) when the Court precedent does not adequately protect
our citizens’ basic rights and liberties.

860 N.W.2d 686, 690 (Minn. 2015) (internal quotation marks omitted).

These open-ended criteria give the Minnesota Supreme Court ample

room to develop independent state constitutional law according to

ordinary principles of constitutional interpretation.
45

A number of cases under article I, section 10 of the Minnesota

Constitution, which is a search and seizure provision parallel to article I,

section 8 of the Iowa Constitution, demonstrate the flexibility. For

example, in State v. Carter, the Minnesota Supreme Court held that a

sniff by a drug detection dog outside a storage unit was a “search,”

contrary to prevailing federal precedent. 697 N.W.2d 199, 208, 210–11

(Minn. 2005) (en banc). In State v. Askerooth, the court declared that the

approach of the United States Supreme Court in Atwater v. City of Lago

Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549, 577

(2001), which allowed full arrests for minor criminal violations, would not

be followed under the Minnesota Constitution. 681 N.W.2d 353, 363

(Minn. 2004) (en banc). In State v. Fort, the Minnesota court held that a

consent search of a passenger in a vehicle stopped for routine traffic

violations exceeded the scope of the search and was invalid under the

Minnesota Constitution regardless of what federal law might allow. 660

N.W.2d 415, 418–19 (Minn. 2003) (en banc). In Ascher v. Commissioner

of Public Safety, the court refused to follow Michigan Department of State

Police v. Sitz, 496 U.S. 444, 455, 110 S. Ct. 2481, 2488, 110 L. Ed. 2d

412, 423 (1990), holding that random police roadblocks for intoxicated

drivers without reasonable suspicion violated article I, section 10 of the

Minnesota Constitution. 519 N.W.2d 183, 187 (Minn. 1994) (en banc).

In In re Welfare of E.D.J., the Minnesota Supreme Court rejected

California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1550, 113

L. Ed. 2d 690, 697 (1991), holding that a person facing contact with a

police officer is “seized” when he reasonably concludes that he is not free

to leave, noting that it was not “persuaded” by the United States

Supreme Court’s departure from its earlier cases. 502 N.W.2d 779, 781–

83 (Minn. 1993) (en banc). Nothing in the case of Kahn v. Griffin, which
46

suggests factors that parties may choose to brief with respect to

constitutional issues based on prior caselaw, indicates these cases were

wrongly decided. 701 N.W.2d 815, 829 (Minn. 2005) (en banc)

(suggesting, as a “general” rule, seven nonexclusive factors).

Indeed, the notion that criteria are usually only suggestions for

advocacy and not designed as barriers to independent state

constitutional law can be demonstrated in the context of automobile

searches and seizures. The dissent declares that if we adopted a neutral-

criteria approach, the result would be different in this case. However,

that assumes we adopt a hard substantive approach or ironclad-

checklist approach. An examination of the vibrant independent state law

in leading criteria jurisdictions shows the criteria have not been

employed as a major barrier to the development of independent state

constitutional law. For example, the Pennsylvania Supreme Court has

declined to follow the Carroll doctrine. Commonwealth v. Brown, 23 A.3d

544, 553 (Pa. Super. Ct. 2011). The Washington Supreme Court has also

declined to follow Carroll. State v. Snapp, 275 P.3d 289, 296 (Wash.

2012) (en banc). The New Jersey Supreme Court rejected Belton in the

court’s opinion in State v. Eckel, 888 A.2d 1266, 1277 (N.J. 2006). See

Paul Stern, Revamping Search-and-Seizure Jurisprudence Along the

Garden State Parkway, 41 Rutgers L.J. 657, 688–92 (2010). Similarly,

Wyoming, another criteria state, declined to follow Belton. Vasquez v.

State, 990 P.2d 476, 489 (Wyo. 1999). 11

11The dissent cites a footnote in a recent Utah case supporting its argument that
we should adhere to federal precedent in interpreting parallel provisions of the Iowa
Constitution. See State v. Houston, ___ P.3d ___, ___ n.133, 2015 WL 773718, at *14
n.133 (Utah Mar. 13, 2015). However, the citation is incomplete and gives the wrong
impression. The position of the Utah court is more balanced, noting, “While we are
certainly not required to adopt a federal interpretation for our state provision, we
likewise are not forbidden from doing so.” Id. I agree with that statement. Cf. State v.
47

The above experience demonstrates two things. First, in most

states, criteria have not served as a barrier to independent state

constitutional adjudication as advocated by the dissent. Second, a

significant downside to criteria is that they generate satellite litigation

over their substance and proper application. See Williams at 151–52

(noting in criteria states, the criteria themselves become the focus of

___________________
Breuer, 808 N.W.2d 195, 197–99, 199, 201 (Iowa 2012) (declining to adopt
Massachusetts approach to requirement that warrant be physically present at time of
search and following approach of federal precedent). Additionally, the Utah court
rejected conclusory opinions that simply adopt a different state constitutional standard
without explanation or rationale. See Houston, ___ P.3d at ___ n.133, 2015 WL 773718,
at *14 n.133. I agree with that, too. Indeed, our cases have laid out, sometimes in
thorough (or excessive?) detail, why we have departed from federal precedent. See
Short, 851 N.W.2d at 481–92; Baldon, 829 N.W.2d at 791–803; Pals, 805 N.W.2d at
777–84; Ochoa, 792 N.W.2d at 268–91. I also agree with the declaration by the Utah
Supreme Court in State v. Tiedemann, rejecting “a formula of some kind” for
adjudication of state constitutional issues. 162 P.3d 1106, 1114 (Utah 2007). As the
Utah court stated:
In theory, a claimant could rely on nothing more than plain language to
make an argument for a construction of a Utah provision that would be
different from the interpretation the federal courts have given similar
language. Independent analysis must begin with the constitutional text
and rely on whatever assistance legitimate sources may provide in the
interpretive process. There is no presumption that federal construction
of similar language is correct.
Id. at 1115. Additionally, the dissent cites State v. Anderson, for the notion that Utah’s
preference is to interpret the search and seizure provision of the Utah Constitution in
“accord with the Fourth Amendment.” 910 P.2d 1229, 1238 (Utah 1996). The
Anderson case in turn cites State v. Watts for this proposition; however, the Watts case
notes the more nuanced approach of the Utah Supreme Court:
In declining to depart in this case from our consistent refusal heretofore
to interpret article I, section 14 of our constitution in a manner different
from the fourth amendment to the federal constitution, we have by no
means ruled out the possibility of doing so in some future case. Indeed,
choosing to give the Utah Constitution a somewhat different construction
may prove to be an appropriate method for insulating this state’s citizens
from the vagaries of inconsistent interpretations given to the fourth
amendment by the federal courts.
750 P.2d 1219, 1221 n.8 (Utah 1988); see Baldon, 829 N.W.2d at 830–31 (Appel, J.,
specially concurring) (citing inconsistencies “on the proper application of Fourth
Amendment law among the Justices”).
48

litigation rather than the underlying state constitutional question). In

reality, there is no mechanical checklist that can be applied to determine

each and every question of state constitutional law. The court is thus

correct in reaffirming the Tonn–Ochoa approach, reiterated in Short and

Baldon, and in rejecting appeals to establish artificial criteria for

independent state constitutional adjudication. Short, 851 N.W.2d at 487;

Baldon, 829 N.W.2d at 790–91.

C. The State’s Neutral Criteria. While we have rejected the

criteria approach for state constitutional adjudication, the State’s neutral

criteria suggest several potential approaches to independent state

constitutional law. Subject to ethical constraints and procedural rules,

we do not limit the substantive advocacy of parties who appear before us.

Any party may make what it considers its most persuasive state

constitutional arguments. As will be seen below, we have already

explored all of the State’s neutral criteria in our cases, and the State’s

effort in this case is essentially a repackaging and relabeling of concepts

rejected in our caselaw. While we have resisted any formula for

constitutional adjudication, our caselaw amply illuminates the manner

in which various authorities may contribute to the development of

independent state constitutional law.

1. Development of the claim in lower courts. The first criterion

proposed by the State is development of the claim in lower courts. This

factor has not generally been cited by other criteria states: it is missing

in Hunt, Edmunds, Gunwall, and other criteria cases. See generally,

Williams at 146–62. The thrust of the State’s position here, however, can

best be understood as one of issue preservation. The State in effect

presses the view that if a party has not presented an argument based on
49

its neutral criteria, any claim based upon an independent state

constitutional theory is waived.

Even in criteria states, such an approach may not be followed. For

example, in Pennsylvania, the court has emphasized that while briefing

on its factors is certainly helpful, the failure to do so is not fatal to a

state constitutional claim. See Commonwealth v. Swinehart, 664 A.2d

957, 961 n.6 (Pa. 1995); Phyllis W. Beck, Foreword: Stepping Over the

Procedural Threshold in the Presentation of State Constitutional Claims, 68

Temp. L. Rev. 1035, 1038–39 (1995) (emphasizing that a litigant seeking

to assert rights under state constitutions should be “free from a technical

procedure that may not always serve to advance the inquiry at hand”).

In any event, we have established our approach to issue

preservation regarding independent state constitutional law in a number

of cases. When a constitutional claim is made but neither the State nor

Federal Constitution is specifically identified, we consider the claim

preserved under both the State and Federal Constitutions. See, e.g.,

State v. Harrington, 805 N.W.2d 391, 393 n.3 (Iowa 2011); King v. State,

797 N.W.2d 565, 571 (Iowa 2011). On the other hand, when a claim is

expressly made citing the Fourth Amendment but no mention is made of

the state constitution, we consider the claim waived. See, e.g., State v.

Vance, 790 N.W.2d 775, 780 (Iowa 2010); State v. Allensworth, 748

N.W.2d 789, 791 n.2 (Iowa 2008). When both the State and Federal

Constitutions are cited but a party relies solely on the applicable federal

constitutional standard, we apply the federal constitutional standard but

reserve the right to apply it in a more stringent manner. See, e.g., State

v. Breuer, 808 N.W.2d 195, 200 (Iowa 2012); State v. Pals, 805 N.W.2d

767, 771–72 (Iowa 2011); King, 797 N.W.2d at 571; State v. Bruegger,
50

773 N.W.2d 862, 883 (Iowa 2009). We have thus already addressed the

issues raised in the State’s first criteria.

2. Constitutional text. The second criterion offered by the State is

constitutional text. This is a common factor cited by many criteria

states. See, e.g., Hunt, 450 A.2d at 965 (Handler, J., concurring);

Edmunds, 586 A.2d at 895; Gunwall, 720 P.2d at 811. As one state

supreme court has stated, an independent state constitutional argument

may be made on the basis of text alone. See Tiedemann, 162 P.3d at

1115. We have considered the role played by text in a number of our

prior cases. See, e.g., Short, 851 N.W.2d at 500–01; Baldon, 829 N.W.2d

at 823–24 (Appel, J., specially concurring); Ochoa, 792 N.W.2d at 268–

69. I stand by the discussion in those cases.

The text of a constitutional provision is the starting point of

analysis even in ambiguous and open-ended constitutional provisions

like article I, section 8 of the Iowa Constitution. In the context of search

and seizure law, however, textual analysis is often very challenging, so

challenging that some preeminent authorities have concluded that the

text itself offers no meaningful guidance on a number of key interpretive

issues. See Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 353–54 (1974). Particularly

challenging has been the relationship between the reasonableness clause

and the warrant clause, an issue addressed at length in Short, 851

N.W.2d at 483–85.

To the extent the state constitution has text not included in the

Federal Constitution, like the language in article I, section 1 based on the

Virginia Declaration of Rights, federal authority, of course, has little

value. See City of Sioux City v. Jacobsma, 862 N.W.2d 335, 348–49 (Iowa

2015); Bruce Kempkes, The Natural Rights Clause of the Iowa
51

Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593, 634–35

(1993). Further, to the extent there are differences in language in texts

related to the same subject matter, any difference in language between

the Iowa Constitution and its federal counterpart is worth a hard look.

For example, the right to counsel provision in article I, section 10 of the

Iowa Constitution extending the right to “all criminal prosecutions, and

in all cases involving the life, or liberty of an individual” differs from its

federal counterpart. Iowa Const. art I, § 10; see State v. Young, 863

N.W.2d 249, 256–57 (Iowa 2015). Such differences in text should be

carefully studied and may help support a different interpretation under

the state constitution than under prevailing federal authority. See, e.g.,

Young, 863 N.W.2d at 258, 281.

It is also true, as an abstract matter, that a case from another

jurisdiction relying on a differently phrased state constitutional provision

may be less authoritative than one decided under a similar state

constitutional provision. This is not, however, to use the vernacular of

the dissent, a bright-line rule. The underlying state court decision may

not turn on distinctive language but may be based upon an analysis that

applies with equal force to an Iowa constitutional provision covering the

same subject matter. Different language in state constitutions may still

have much in common, like the proverbial overlapping Venn diagram.

Nonetheless, it is undeniable that a state court decision decided under a

differently worded constitutional provision may be less persuasive or not

persuasive at all, if the decision is based largely or exclusively on

language absent from the counterpart in the Iowa Constitution.

One suspects, however, that in the hands of the dissenters, this

factor is designed to be an ironclad, hard substantive criterion such that

if the text of an Iowa constitutional provision is similarly worded to the
52

federal counterpart, the federal interpretation is presumptively (or maybe

even definitely) correct. If so, this is, of course, the polar opposite of a

neutral criterion. It would ironically impede the development of state

constitutional law where there are parallel federal and state provisions,

even though all the federal rights language was derived from previous

state constitutional models. See Baldon, 829 N.W.2d at 804–05 (noting

the United States Constitution “was the outgrowth of colonial experience

and state constitutional precedents”); see also Willi Paul Adams, The

First American Constitutions: Republican Ideology and the Making of the

State Constitutions in the Revolutionary Era 55–56 (Rita & Robert Kimber

trans., expanded ed. 2001) (noting John Adams’s reasoning in

recommending that New Hampshire form its own government); Robert F.

Williams, The State Constitutions of the Founding Decade: Pennsylvania’s

Radical 1776 Constitution and Its Influences on American

Constitutionalism, 62 Temp. L. Rev. 541, 579–80 (1989) (citing the

emerging consensus that the Federal Bill of Rights originated in state

and colonial rights guarantees). An approach that strongly presumes the

correctness of federal authority under similarly phrased constitutional

provisions is not a neutral criterion that requires careful textual analysis,

but an unbalanced criterion that seeks to prevent the development of

state constitutional law. We have repeatedly and unequivocally rejected

this contention, and by now it should have been put to rest. See, e.g.,

Short, 851 N.W.2d at 486–87; Baldon, 829 N.W.2d at 790–91 (majority

opinion) (recognizing Tonn–Ochoa analysis in interpreting nearly identical

search and seizure language of the Iowa Constitution differently than its

federal counterpart); id. at 824 (Appel, J., specially concurring) (citing

various state supreme court cases supporting independent interpretation

of provisions of state constitutions with parallel federal counterparts);
53

Ochoa, 792 N.W.2d at 267 (holding the degree to which we follow United

States Supreme Court precedent, or any other precedent, “depends solely

upon its ability to persuade us with the reasoning of the decision”).

Indeed, the notion that state search and seizure provisions nearly

identical to the federal language should be interpreted identically to their

federal counterpart in connection with automobile stops has been

rejected in leading criteria jurisdictions. See Vance, 790 N.W.2d at 788

(citing examples); see, e.g., Eckel, 888 A.2d at 1277; Commonwealth v.

White, 669 A.2d 896, 901–02 (Pa. 1995); Vasquez, 990 P.2d at 488–89.

To the extent the State argues that text should be considered in

state constitutional adjudication, there can be no quarrel. Text is always

a starting point in constitutional adjudication. It would be wrong,

however, to suggest that the text of article I, section 8 provides a

definitive answer to many complex search and seizure questions.

Consistent with the above cited authorities, however, there is no

implication that the mere fact article I, section 8 of the Iowa Constitution

has language similar to the Fourth Amendment gives rise to a

presumption that the federal interpretation should be adopted. The

power of federal precedent turns “solely” on its persuasive power. See

Ochoa, 792 N.W.2d at 267.

3. Constitutional history, including reports of state constitutional

debates and state precedent. The third criterion listed by the State is

constitutional history, including reports of state constitutional debates

and state precedent. Similar factors are cited in a number of criteria

states. See, e.g., Hunt, 450 A.2d at 965; Edmunds, 586 A.2d at 895;

Gunwall, 720 P.2d at 811. We have canvassed state and federal

constitutional history in a number of our recent search and seizure
54

cases. See, e.g., Short, 851 N.W.2d at 481–506; Ochoa, 792 N.W.2d at

269–75.

We reviewed the historical background of the Fourth Amendment

extensively in Ochoa, 792 N.W.2d at 269–73. The meaning of its history

is, of course, subject to debate, and the historical record often does not

provide much guidance on highly-focused, concrete interpretive

questions in the area of search and seizure. In Ochoa, however, we

concluded the Fourth Amendment history generally supported the view

that the search provisions were a limitation on government power, that

general warrants and writs of assistance were anathema to the founders,

and that requiring particular facts to support a search is a limitation

consistent with that history. Id.

While we should be cautious of drawing overbroad conclusions

from historical study, I agree with the State that historical study of the

origins of the Fourth Amendment may be relevant to state constitutional

analysis. In Short, for instance, we cited the work of Thomas Y. Davies,

who has encouraged state supreme courts to engage in authentic search

and seizure historical analysis to avoid unoriginal use of reasonableness

that engages in relativistic balancing. 851 N.W.2d at 501 (citing Thomas

Y. Davies, Correcting Search-And-Seizure History: Now-Forgotten Common-

Law Warrantless Arrest Standards and the Original Understanding of

“Due Process of Law,” 77 Miss. L.J. 1, 118, 223–24 (2007)). We have

attempted to follow Davies’s suggestion. See Ochoa, 792 N.W.2d at 274–

75. Additionally, William Cuddihy, in his magisterial volume on the

history of the Fourth Amendment, concluded that the “warrant

preference” approach to the text—the approach we embraced in Short—

was the most consistent with the founders’ intentions. William J.

Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602–
55

1791 602, 633–37, 734–42 (2009); see also Short, 851 N.W.2d at 497,

501; Tracey Maclin, The Complexity of the Fourth Amendment: A Historical

Review, 77 B.U. L. Rev. 925, 928 (1997) (“[T]he ‘warrant preference rule’

. . . requires that the safeguards of the Warrant Clause define the

reasonableness of a given search or seizure.”).

With respect to article I, section 8 of the Iowa Constitution, we

surveyed the history in Ochoa and did not discover materials having a

direct bearing on search and seizure law. 792 N.W.2d at 274–75. This is

not unusual. As noted by one scholar, state historical sources are “thin

at best and wholly indeterminate at worst.” Douglas S. Reed, Popular

Constitutionalism: Toward a Theory of State Constitutional Meanings, 30

Rutgers L.J. 871, 873 (1999); see also Paul W. Kahn, Interpretation and

Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1153 (1993)

(noting that state sources are “meager”).

While the dissent in announcing its so-called neutral criteria

embraces historical exploration, it avoids engaging in any historical

consideration regarding what the Iowa founders would have thought of

the proposed so-called neutral criteria. There is, of course, nothing in

the debates about so-called neutral criteria. We do, however, know

something about the founders’ view of federal law and the United States

Supreme Court’s interpretation of it.

For example, George Ells, one of the leading Iowa founders,

believed the Fugitive Slave Act of 1850 was an unconstitutional violation

of due process. He stated that the Due Process Clause was “violated

again and again by the dominant party in the land, which rides rough-

shod ove[r] the necks of freemen.” 1 The Debates of the Constitutional

Convention of the State of Iowa 102 (W. Blair Lord rep., 1857) [hereinafter

The Debates]. Further, he declared that “[i]f the words ‘due process of
56

law,’ shall in time be recognized by our judicial tribunals to mean what

they really do mean, . . . then, [t]hat infamous Fugitive Slave Law will

become a nul[l]ity.” Id. 12

William Penn Clarke, another of the leading players in the

constitutional convention, was a supporter of John Brown, and actively

helped Brown smuggle fugitive slaves out of Iowa to their eventual

freedom in direct defiance of federal law. See Lowell J. Soike, Necessary

Courage: Iowa’s Underground Railroad in the Struggle Against Slavery

153–57 (2013) [hereinafter Soike]. Ells and Clarke do not seem to be the

kind of persons who would write into the Iowa Constitution some

principle of deference to federal judicial authority. And, of course, they

did not.

However, the Iowa Constitution of 1857 contains provisions that

were contrary to the Fugitive Slave Act of 1850, including the right to

jury trials in cases involving liberty. See Short, 851 N.W.2d at 521 (citing

The Debates 101–02); Ben. F. Shambaugh, The Constitutions of Iowa

270–71 (1934) (noting some opposition to the jury trial provision on the

ground that it would “nullify[] the Fugitive Slave Law”). The jury trial

provision appears contrary to the United States Supreme Court decision

in Prigg v. Commonwealth, where the Court held a state could not impose

protective procedures on the enforcement of the Fugitive Slave Act of

1793. 41 U.S. (16 Pet.) 539, 625–26 (1842). James F. Wilson, a delegate

to the Iowa constitutional convention who later gained fame as chairman

of the United States House Committee on the Judiciary, declared that “he

12Ellswas taking the position announced by the Wisconsin Supreme Court in In
Re Booth, which found that the Fugitive Slave Act violated due process under the United
States Constitution. 3 Wis. 1, 41–43, 70 (1854). This outlier was overturned by the
United States Supreme Court in Ableman v. Booth, 62 U.S. (21 How.) 506, 514, 526
(1858).
57

did not care if the provision under consideration should conflict with

federal law” because the Fugitive Slave Act was unconstitutional. Robert

Cook, Baptism of Fire: The Republican Party in Iowa, 1838–1878 81

(1994) [hereinafter Cook].

Further, throughout the 1850s, there was a battle in Iowa over

enforcement of laws related to slaves or former slaves where state courts

were the forum of choice because of the inhospitable climate in federal

court on these issues. In the case of In re Jim (1848), a state court judge

discharged a claimed slave and fined the detective who had detained

him. See Robert R. Dykstra, Bright Radical Star: Black Freedom and

White Supremacy on the Hawkeye Frontier 17–18 (1993). The detective

did not give up, but convinced a federal judge in Dubuque to order a

precept for arrest for Jim, the claimed fugitive slave. See id. at 18.

Supporters of Jim, however, countered by obtaining a writ of habeas

corpus in Muscatine from the acting Chief Justice of the Iowa Supreme

Court who, after a hearing, held that the arrest was improper, released

the defendant, and declared to bystanders, “here is a free man.” Id.

(internal quotation marks omitted).

In another case involving a claimed fugitive slave in 1855,

Governor James W. Grimes declared “if not in office, I am inclined to

think that I should be a law-breaker.” Cook at 65 (internal quotation

marks omitted). He sent his associates to pack the trial which was

before a commissioner for the federal district court in Burlington. Id.;

see also Outside In African-American History in Iowa 1838–2000 68 (Bill

Silog ed. 2001) [hereinafter Outside In]. Grimes sent for a state court

judge to prepare a writ of habeas corpus in the event of an adverse result

in the federal forum. Outside In at 68. When the alleged fugitive slave

was freed for lack of evidence, Governor Grimes declared that “a slave
58

could not be returned from Des Moines County into slavery.” Cook at

65–66 (internal quotation marks omitted). The alleged fugitive was soon

on his way to Canada. Outside In at 68.

The case of In re Ralph, of course, employed an approach to African

Americans that was nowhere found in the federal caselaw. 1 Morris 1

(Iowa 1839). Not surprisingly, the reaction of the founding generation to

Dred Scott was one of bitter denunciation, including a joint resolution of

the general assembly that “ ‘Dred Scott [] is not binding in law.’ ” See

Short, 851 N.W.2d at 484 (quoting 1858 Iowa Acts Res. 12, at 433). At

the time of the 1857 Iowa Constitution, the United States Supreme Court

was in the hands of judges sympathetic with the southern cause: the

opposite was true in Iowa. Indeed, one of the causes of the civil war was

the refusal of states like Iowa to conform with federal law with respect to

slavery. See Confederate States of America – Declaration of the

Immediate Causes Which Induce and Justify the Secession of South

Carolina from the Federal Union (adopted Dec. 24, 1860), available at

http://avalon.law.yale.edu/19th_century/csa_scarsec.asp [hereinafter

Declaration of the Immediate Causes] (specifically citing the failure of

northern states, including Iowa, to enforce federal law). 13 To my eye,
these events, contemporaneous with the Iowa Constitution of 1857,

provide barren soil for those that seek to impose federal lockstep directly

or indirectly on Iowa courts in the name of history. See generally Mark

S. Cady, The Vanguard of Equality: The Iowa Supreme Court’s Journey to

13The South Carolina Declaration also references the refusal of Iowa to forward

murderers for prosecution, an apparent reference to the efforts of Governor Samuel
Kirkwood to avoid the arrest and extradition of Barclay Coppoc, one of the participants
in John Brown’s raid. See Declaration of the Immediate Causes. Governor Kirkwood
stalled representatives of Virginia with technicalities long enough to allow Coppoc to
escape. See Soike at 165–171.
59

Stay Ahead of the Curve on an Arc Bending Towards Justice, 76 Alb. L.

Rev. 1991 (2013); Mark S. Cady, A Pioneer’s Constitution: How Iowa’s

Constitutional History Uniquely Shapes Our Pioneering Tradition in

Recognizing Civil Rights and Civil Liberties, 60 Drake L. Rev. 1133 (2012).

The important point, however, with respect to search and seizure

law specifically, is that the lack of direct historical materials related to

article I, section 8 should not be charged as a factor against an

independent interpretation of state law. The lack of historical materials

neither supports nor opposes a state constitutional interpretation

different from prevailing federal law. 14 This is particularly true in the

area of search and seizure, where current cases often involve modern

developments such as cell phones, GPS devices, computerized records,

and even automobiles, which the Iowa founders could not possibly have

anticipated. Under the circumstances, to attribute lack of a historical

record as a strike against thoughtful independent state constitutional

adjudication is hardly a neutral criterion but is simply an artificial

barrier designed to yield desired results and prevent consideration of the

underlying merits of a state constitutional claim.

4. Decisions of sister states, particularly when interpreting similar
constitutional text. The fourth criterion proposed by the State is the

decisions of other states, particularly when interpreting similar

constitutional provisions. In general, review of authority in other states

14The Iowa state historical materials may be thin in the sense that they do not
directly address search and seizure issues but they are rich in another, more general
sense. We know the 1857 framers, by putting the individual liberties in the first article
of the Iowa Constitution, regarded them as having great importance. In addition,
George Ells, Chair of the Committee on the Preamble and the Bill of Rights, declared
“ ‘the Bill of Rights is of more importance than all the other clauses in the Constitution
put together.’ ” Short, 851 N.W.2d at 482–83 (quoting The Debates 103).
60

is a criteria almost universally found in criteria jurisdictions. See, e.g.,

Hunt, 450 A.2d at 956–57; Edmunds, 586 A.2d at 895; Gunwall, 720

P.2d at 815–16. In our independent state constitutional cases, we have

often looked at authority from other states for their persuasive power.

See, e.g., Short, 851 N.W.2d at 481; Baldon, 829 N.W.2d at 818; Ochoa,

792 N.W.2d at 267.

Of course, there is no requirement authority exist in other states

for a particular constitutional approach. Otherwise, the law would be

the proverbial “fly frozen in amber.” By definition, there always has to be

a first jurisdiction that moves when the law changes. No one explicitly

suggests, even the dissent, that the law should never change. Further,

some questions of state constitutional law may be of first impression,

even among the various state jurisdictions. Certainly, as a general

matter, the caselaw of other states may be the source of persuasive

authorities to aid in the interpretation of Iowa constitutional law.

In order to be persuasive authority, however, a “me too” case in a

lockstep jurisdiction that simply incorporates federal law without an

evaluation of its persuasive reasoning is of little value. Such precedent is

not part of the body of considered reasoning of constitutional principles.

Instead, we look to the persuasive power of the reasoning of other state

supreme courts which, using their independent judgment, have sought

to develop what they consider the best and soundest approach to state

constitutional law. In looking at the competing approaches in state

precedents, we do not make our determination by a majoritarian

numbers game that assumes resolution of sensitive issues of state

constitutional law may be determined on some kind of state

constitutional abacus. What is critical with state constitutional

precedents in other states, as with all cited authority, is the underlying
61

persuasive power of the reasoning. See Ochoa, 792 N.W.2d at 267

(emphasizing we are influenced by cases from other jurisdictions solely

on the basis of their persuasive power).

Thus, the independent work of other state supreme courts that

present persuasive arguments may be of considerable value. There is a

rich body of state constitutional authority on search and seizure law

when state courts grapple with the challenging issues under their state

constitutions. Such authority is readily available for Iowa practitioners

in the pages of the various law reviews, easily accessible electronic

databases, and in the works of Robert F. Williams, G. Alan Tarr, Jennifer

Friesen, and others. See generally Baldon, 829 N.W.2d at 814–20.

Further demonstration of the potential importance of developments

in state constitutional law is revealed in Vance, 790 N.W.2d at 786–88.

In that case, we faced the question of whether counsel was ineffective in

failing to recognize Belton was under substantial attack in state courts

and might no longer be good law for purposes of state constitutional

analysis. Id. at 787–88. While we were not in a position to determine the

question of ineffective assistance on the record before us, Vance clearly

stands for the proposition that defense counsel should have a working

knowledge of the larger state constitutional trends around the country.

Id. at 789–90.

5. Practical consequences, including the need for national

uniformity. The last criterion proposed by the State is consideration of

practical consequences, including the need for national uniformity.
62

Interestingly, none of the cases cited by the dissent has a similar

criterion with emphasis on national uniformity. 15

In Short, we canvassed reasons why we rejected the argument that

national uniformity should be an inhibiting factor in the development of

independent state constitutional law. 851 N.W.2d at 487–89. The

reasons need not be repeated at length here. Suffice it to say we have

generally rejected calls for uniformity on the ground that such calls were

inconsistent with the federalist system, would require adoption of

constitutional norms diluted by federalist considerations in a context in

which federalism concerns were wholly absent, 16 would ironically convert

the federal floor into a federal ceiling with respect to individual liberties,

and would be inconsistent with our state’s history of independent

adjudication. See id.; Baldon, 829 N.W.2d at 825–27; Ochoa, 792

N.W.2d at 266 n.4. On this question of whether national uniformity

should be an important consideration, our past cases have provided the

State with the answer. See,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2812905. Public record. Not legal advice.