State of Iowa v. Isaac Andrew Baldon III

IN THE SUPREME COURT OF IOWA

No. 10–0214

Filed April 19, 2013

STATE OF IOWA,

Appellee,

vs.

ISAAC ANDREW BALDON III,

Appellant.

Appeal from the Iowa District Court for Scott County, Mark J.

Smith, Judge.

Defendant appeals his conviction for drug dealing by challenging

the search of his automobile. REVERSED AND REMANDED FOR NEW

TRIAL.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant

Attorney General, Michael J. Walton, County Attorney, and Kelly G.

Cunningham, for appellee.

2

CADY, Chief Justice.

In this case, we must decide whether a provision in a written

parole agreement that authorizes a parole officer or law enforcement

officer to conduct a warrantless, suspicionless search of a parolee and

the home, vehicle, and belongings of the parolee satisfies, by itself, the

consent exception to the reasonableness and warrant requirements of

the search and seizure clause of the Iowa Constitution. We conclude a

parole agreement does not satisfy the consent exception, and we reverse

the judgment and sentence of the district court. We remand the case for

a new trial.

I. Background Facts and Proceedings.

Isaac Baldon III was sentenced in 2003 to a term of incarceration

with the state penal system following convictions for possession of

controlled substances with intent to deliver and possession of a firearm

by a felon. He was granted parole on October 20, 2008. On November 3,

2008, Baldon and his parole officer, Kevin Peterson, signed a parole

agreement that contained seventeen standard conditions of parole and

five special terms of parole. One standard condition, paragraph P,

provided that Baldon would submit his “person, property, place of

residence, vehicle, personal effects to search at any time, with or without

a search warrant, warrant of arrest or reasonable cause by any parole

officer or law enforcement officer.” The parole order directed that Baldon

would not be released on parole until he signed the agreement.

To combat recidivist probationers and parolees, the Bettendorf

Police Department commonly relied on paragraph P of the standard

terms of a parole agreement to conduct searches of parolees in the city.

Its officers were made aware of the consent-search provision and received

training in conducting parolee searches.

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More specifically, Bettendorf police officers implemented a protocol

to check the Traveler Motel in Bettendorf several times each day as part

of a routine patrol. The motel was known by the police department as

perhaps the single highest crime location in Bettendorf. The Bettendorf

Police Department has made numerous arrests at the motel, a total of

110 in 2007 alone. Most of the arrestees were probationers and

parolees. The arrests most frequently involved drug offenses,

prostitution, gun offenses, and auto theft.

Under the search protocol for the motel, the patrolling officer

checks the license plate numbers of every vehicle in the parking lot to

locate parolees or probationers. If a vehicle in the lot belongs to a

parolee, the officer contacts the parolee’s parole officer, either to obtain

consent to search the parolee or to invite the parole officer to join the

police officer in a search of the parolee. Both the police department and

the parole officers are accustomed to using paragraph P as a basis to

search parolees, either without suspicion or suspicion based on the high-

crime nature of the area. The officer then contacts the front desk

attendant of the motel to ascertain whether the parolee is checked into

the hotel and, if so, to obtain the room number.

At approximately 8:30 a.m. on May 25, 2009, Officer Dennis Tripp

followed this protocol during his patrol of the Traveler Motel. The license

plate check of a 1996 Oldsmobile showed it was registered to Baldon.

Upon learning this, Officer Tripp called the shift commander, Sergeant

Piazza, and asked him to contact parole officer Kevin Peterson.

Pursuant to the protocol, Sergeant Piazza informed Peterson that

Baldon was at the motel. He also asked Peterson for permission to have

Officer Tripp search the motel room and vehicle. Peterson gave his

permission to search Baldon, but indicated he would like to be involved

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in the search and would promptly meet the police officers at the motel.

Tripp learned Baldon was staying in room 29.

When Peterson arrived, Officer Tripp had been joined by Sergeant

Piazza and another Bettendorf police officer. The officers collectively

approached room 29 and knocked on the door. Eventually, Baldon

opened the door. A young woman, later revealed to be a minor, was

observed sitting on the bed. Peterson greeted Baldon and explained that

the parole agreement authorized the officers to conduct a search of the

motel room and Baldon’s vehicle.

The search of the motel room and Baldon’s person yielded no

incriminating evidence. Officer Tripp then took Baldon’s car keys and

searched Baldon’s car. He discovered a large quantity of marijuana.

After Tripp read Baldon his Miranda rights at the police station, Baldon

confessed he had received the marijuana in satisfaction of a debt. The

State charged Baldon with possession of a schedule I controlled

substance with intent to deliver, second or subsequent offense, under

Iowa Code sections 124.411 and 902.8 (2009) and possession of an

amount of marijuana greater than 42.5 grams in violation of Iowa Code

chapter 453B.

Baldon moved to suppress the marijuana seized from the search of

his vehicle under both the Iowa and Federal Constitutions. He claimed

the entry into his motel room and vehicle violated the Search and Seizure

Clauses of both the Iowa and Federal Constitutions because paragraph P

of the parole agreement constituted involuntary consent. The State

argued the search was reasonable because Baldon consented to the

searches by signing the parole agreement. It asserted Baldon was still

serving his sentence while on parole and whatever expectation of privacy

he may have had while on parole had been waived. At the hearing on the

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suppression motion, Officer Tripp testified he conducted the search

based only on the agreement. He testified there had been no complaints

involving Baldon at the motel. Peterson, the parole officer, agreed the

search was “completely based on [the] agreement and nothing more.”

The district court denied Baldon’s motion to suppress. It found

Baldon consented to the search by signing the parole agreement and that

the consent made the search reasonable. It also found Baldon waived

any claim of privacy.

Baldon then waived his right to a trial by a jury, and the court

found him guilty of the charges. Following the imposition of sentence,

Baldon appealed.

II. Scope and Standard of Review.

“We review claims the district court failed to suppress evidence

obtained in violation of the federal and state constitutions de novo.”

State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). When presented with

such a claim, “ ‘we make an independent evaluation [based on] the

totality of the circumstances as shown by the entire record.’ ” State v.

Kurth, 813 N.W.2d 270, 272 (Iowa 2012) (quoting State v. Krogmann, 804

N.W.2d 518, 522–23 (Iowa 2011)). “ ‘Each case must be evaluated in

light of its unique circumstances.’ ” Id. (quoting Krogmann, 804 N.W.2d

at 523).

III. Issue Presented.

The fighting issue presented to the district court in response to the

motion to suppress was whether Baldon consented to the search by

signing the parole agreement. Although the State also seemed to argue

more generally before the district court that suspicionless searches of

parolees did not violate the Search and Seizure Clause of either the Iowa

or Federal Constitution because parolees have a diminished expectation

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of privacy, it never argued the State had reasonable suspicion or other

reasonable grounds to conduct the search of Baldon apart from consent.

While the record is sketchy, the diminished-expectation-of-privacy

argument was, instead, tied to the State’s consent claim to support the

proposition that Baldon was aware he had little expectation of privacy

after he signed the parole agreement.

On appeal, the State reiterated its claim of consent. Alternatively,

however, the State argued the search was reasonable under a general

search-and-seizure analysis because Baldon’s minimal expectation of

privacy was outweighed by the interests of society in managing parolees

and preventing recidivism, as well as reasonable suspicion.

We find the State waived the general reasonableness argument by

not presenting it to the district court in a manner that would have

allowed the court to fully and properly address it. See State v. Ochoa,

792 N.W.2d 260, 291 (Iowa 2010) (recognizing that an argument not

made on an issue before the district court is waived). First, the State

made no argument that special governmental needs justified the search.

Thus, we have no opportunity to consider in this appeal whether the

State’s maintenance of a parole system presents “special needs[] beyond

the normal need for law enforcement, [which] make the warrant and

probable-cause requirement impractical.” See New Jersey v. T.L.O., 469

U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720, 741 (1985)

(Blackmun, J., concurring); see also Griffin v. Wisconsin, 483 U.S. 868,

875, 107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709, 718 (1987) (holding that

Wisconsin’s operation of a probation system constitutes a special need

beyond the normal need for law enforcement).

Second, the State made no argument to the district court that a

balancing test under article I, section 8 would weigh in favor of the State

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in this case. For sure, the evidence at the suppression hearing was

directed at Baldon’s parole status and putative consent as the basis for

the search. See Ochoa, 792 N.W.2d at 291 (holding that parole status

alone is insufficient to justify search of a parolee). The State did not

introduce evidence of any particular need for the parole officer to search

Baldon, either predicated on individual suspicion, background

information particular to Baldon that would have been known to the

parole officer, or the general mission of parole. Thus, the only issue we

address on appeal is whether a parole agreement containing a consent-

to-search clause renders suspicionless and warrantless searches of

parolees reasonable under the search and seizure clause of the Iowa

Constitution.

Additionally, we only analyze the consent issue in this case on

state constitutional law grounds. The United States Supreme Court has

not yet directly weighed in on the issue to direct an outcome under the

Fourth Amendment or to aid us in our resolution under our state

constitution. See Samson v. California, 547 U.S. 843, 852 n.3, 126 S. Ct.

2193, 2199 n.3, 165 L. Ed. 2d 250, 259 n.3 (2006) (declining to consider

whether a search provision in a parole agreement generated under

California law constituted consent). Of course, it is beyond dispute that

the drafters of both our federal and state constitutions took the right to

be free from unreasonable, warrantless searches seriously. See generally

Ochoa, 792 N.W.2d at 269–75 (explaining events surrounding the

drafting and ratification of the Federal and Iowa Constitutions). Yet, we

need not comb for textual differences between the Fourth Amendment

and article I, section 8 to determine if different results might be achieved

under the two constitutions because the case only concerns the relatively

humble inquiry of whether an alleged grant of consent for police to

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conduct warrantless, suspicionless searches pursuant to a parole

agreement is voluntary in the constitutional magnitude of the word

“voluntary.” Thus, our decision hinges on the meaning and spirit of

consent to justify the government’s intrusion without regard to the

constitution.

Moreover, consent is an exception to the requirements of both the

Iowa and Federal Constitutions, and it would be inconsistent with our

judicial role under the circumstances to eschew our state constitution

and interpret the issue under the Federal Constitution unless relief

would not be available to a claimant under our state constitution. As

Justice William Brennan sagely declared in his call to arms for state

courts:

Federalism need not be a mean-spirited doctrine that serves

only to limit the scope of human liberty. Rather, it must

necessarily be furthered significantly when state courts

thrust themselves into a position of prominence in the

struggle to protect the people of our nation from

governmental intrusions on their freedoms.

William J. Brennan, Jr., State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489, 503 (1977). More directly, we

must remember that, at all times, “[t]he Iowa Constitution is the

cornerstone of governing in Iowa.” Varnum v. Brien, 763 N.W.2d 862,

875 (Iowa 2009).

In the final analysis, our right under principles of federalism to

stand as the final word on the Iowa Constitution is settled, long-

standing, and good law. See Ochoa, 792 N.W.2d at 281–86, 287–91

(rejecting the United States Supreme Court’s interpretation of the Fourth

Amendment as permitting warrantless, suspicionless searches of

parolees based on parole status alone); Bierkamp v. Rogers, 293 N.W.2d

577, 579 (Iowa 1980) (“The result reached by the United States Supreme

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Court in construing the federal constitution is persuasive, but not

binding upon this court in construing analogous provisions in our state

constitution.”); State v. Tonn, 195 Iowa 94, 104–05, 191 N.W. 530, 535–

36 (1923) (rejecting the exclusionary rule adopted by the United States

Supreme Court for seizures of evidence by federal agents); see also

Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679, 84

L. Ed. 920, 924 (1940) (“It is fundamental that state courts be left free

and unfettered by us in interpreting their state constitutions.”). As more

fully elucidated by the concurring opinion, state constitutions have been

a crucial font of equality, civil rights, and civil liberties from the

incipience of our republic. Thus, the Supreme Court’s jurisprudence

regarding the freedom from unreasonable searches and seizures under

the Fourth Amendment—or any other fundamental, civil, or human right

for that matter—makes for an admirable floor, but it is certainly not a

ceiling. 1 Traylor v. State, 596 So. 2d 957, 961–63 (Fla. 1992).

With this background in mind, we proceed with what we now

recognize as the Tonn–Ochoa analysis.

1In the past, we did not always employ the doctrine of independent state

grounds to expand civil liberties. In Tonn, for example, we said:

We are now squarely confronted with the proposition as to

whether or not we will continue to follow the Supreme Court of the

United States in the rule of [Boyd v. United States, 116 U.S. 616, 638, 6

S. Ct. 524, 536, 29 L. Ed. 746, 753–54 (1886), and Weeks v. United

States, 232 U.S. 383, 393, 34 S. Ct. 341, 344, 58 L. Ed. 652, 656

(1914)]. The consideration of such a proposition may well “give us

pause.” The question is of great importance in the administration of the

criminal laws of this state.

195 Iowa at 104–05, 191 N.W. at 535. We ended up rejecting the exclusionary rule.

See id. at 107, 191 N.W. at 536. Of course, the United States subsequently

incorporated the Fourth Amendment’s exclusionary rule against the states in Mapp v.

Ohio, 367 U.S. 643, 655–57, 81 S. Ct. 1684, 1691–92, 6 L. Ed. 2d 1081, 1090–91

(1961). The incorporation doctrine commands that we no longer use independent state

grounds to sink below the federal floor.

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IV. Discussion.

It is well-settled that warrantless searches are virtually “ ‘per se

unreasonable . . . subject only to a few specifically established and well-

delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973) (quoting Katz v.

United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576,

585 (1967)); accord State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001).

One recognized exception to the warrant requirement of our constitution

is consent. State v. Reinier, 628 N.W.2d 460, 464–65 (Iowa 2001) (citing

Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44, 36 L. Ed. 2d at 858).

Under this exception, the reasonableness requirement of the Search and

Seizure Clause is satisfied when an individual consents to a search. See

Katz, 389 U.S. at 358 n.22, 88 S. Ct. at 515 n.22, 19 L. Ed. 2d at 586

n.22. The consent establishes a waiver of rights under the Search and

Seizure Clause. Thus, the question before us narrows to whether the

parole agreement in this case establishes consent.

The nature of contracts supports the general proposition that

consent to a search can be prospectively given pursuant to a contract.

See Zap v. United States, 328 U.S. 624, 628–29, 66 S. Ct. 1277, 1279, 90

L. Ed. 1477, 1482 (1946), judgment vacated by 330 U.S. 800, 67 S. Ct.

857, 91 L. Ed. 2d 1259 (1947). In other words, a person can contract

away the constitutional right to be free from unconstitutional searches.

See id.

In Zap, an aeronautical engineer entered into a contract with the

Department of the Navy to perform experimental work involving test

flights of airplanes. Id. at 626, 66 S. Ct. at 1278, 90 L. Ed. at 1480.

Under one of the terms of the contract, the engineer specifically agreed to

permit the government to search the account and billing records of his

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business during the term of the contract. Id. at 627, 66 S. Ct. at 1279,

90 L. Ed. at 1481. A subsequent search of the records by the

government conducted pursuant to the contract led to fraud charges

against the engineer. Id. at 627, 628, 66 S. Ct. at 1279, 90 L. Ed. at

1481. In the course of the prosecution of the charges, the government

defended the warrantless search when challenged by the engineer on

grounds that the engineer waived his Fourth Amendment rights by

entering into the contract. Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at

1481. The Court held the search was valid on two levels: First, it found

the contract constituted a valid advance waiver of his privacy rights

because he agreed to permit the search “in order to obtain the

government’s business.” Id. at 628, 66 S. Ct. at 1279, 90 L. Ed. at 1482.

Second, the search itself was not carried out in an unreasonable manner,

but was done during regular business hours and without any threats or

force. Id.

When consent in any form is used to support a search, the concern

of the Search and Seizure Clause is that the consent be real and not a

“pretext for the unjustified police intrusion against which the Fourth

Amendment is directed.” Schneckloth, 412 U.S. at 228, 93 S. Ct. at

2048, 36 L. Ed. 2d at 863. Thus, our concern when presented with a

search-and-seizure claim in the context of contractual consent is that the

consent promised under the contract be voluntary. Cf. id. at 227, 93

S. Ct. at 2047–48, 36 L. Ed. 2d at 862–63.

Generally, contract terms are considered to be consensual or

voluntary for the same basic reason that courts normally enforce

contracts. Conceptually, courts enforce contracts because they are a

product of the free will of the parties who, within limits, are permitted to

define their own obligations. The consent found within a contract is

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made evident by the bargain exchanged by the parties. In Zap, the

bargained-for exchange was enough, as with most contracts, to support

the consent of its terms. The engineer gave up his constitutional right to

be free from warrantless and suspicionless government searches in

return for obtaining government business. Zap, 328 U.S. at 628, 66

S. Ct. at 1279, 90 L. Ed. at 1482.

The United States Supreme Court has not addressed the specific

question whether a parole agreement executed by a parolee constitutes

valid consent to support a waiver of Fourth Amendment rights. See

Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3, 165 L. Ed. 2d at

259 n.3 (“Because we find that the search at issue here is reasonable

under our general Fourth Amendment approach, we need not reach the

issue whether ‘acceptance of the search condition constituted consent in

the Schneckloth . . . sense of a complete waiver of his Fourth Amendment

rights.’ ” (quoting United States v. Knights, 534 U.S. 112, 118, 122 S. Ct.

587, 591, 151 L. Ed. 2d 497, 504–05 (2001))). See generally Griffin, 483

U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (holding a search of a

probationer’s home pursuant to a Wisconsin probation regulation was

permissible under a special needs theory, but not addressing whether

the probationer had consented to the search under the regulation). We

too have not previously decided the question under the Iowa

Constitution. See Ochoa, 792 N.W.2d at 291.

Many courts across the nation have concluded that consent-search

provisions in probation agreements constitute a waiver of search-and-

seizure rights. See United States v. Barnett, 415 F.3d 690, 691–92 (7th

Cir. 2005) (finding consent-search provision in a probation agreement

was voluntary); State v. Montgomery, 566 P.2d 1329, 1330–31 (Ariz.

1977) (holding probationer voluntarily accepted consent-search provision

13

by accepting probation); People v. Bravo, 738 P.2d 336, 341 (Cal. 1987)

(“A probationer, unlike a parolee, consents to the waiver of his Fourth

Amendment rights in exchange for the opportunity to avoid service of a

state prison term.”); People v. Mason, 488 P.2d 630, 634 (Cal. 1971)

(holding probationer may waive claims to privacy by agreeing in advance

to permit searches at any time); Allen v. State, 369 S.E.2d 909, 910 (Ga.

1988) (finding consent-search provision as part of probation was

voluntarily obtained during plea negotiations); State v. Gawron, 736 P.2d

1295, 1297 (Idaho 1987) (holding conditional release into society of

probationer decreases expectation of privacy); State v. Devore, 2 P.3d

153, 156 (Idaho Ct. App. 2000) (discussing a probationer’s ability to

prospectively consent to warrantless, suspicionless searches in the

probation agreement); People v. Absher, 950 N.E.2d 659, 664–68 (Ill.

2011) (holding defendant contractually agreed to intensive probation to

avoid prison); Rivera v. State, 667 N.E.2d 764, 767 (Ind. Ct. App. 1996)

(holding defendant agreed to submit to searches as a condition of

probation); People v. Hellenthal, 465 N.W.2d 329, 330 (Mich. Ct. App.

1991) (“A probationer . . . has given his consent in return for more

lenient treatment.” (quoting People v. Peterson, 233 N.W.2d 250, 257

(Mich. Ct. App. 1975) (Danhof, J., concurring in part, dissenting in part));

State v. Anderson, 733 N.W.2d 128, 139 (Minn. 2007) (holding

acceptance of probation subject to a search condition “ ‘significantly

diminished [Anderson’s] reasonable expectation of privacy’ ” (quoting

Knights, 534 U.S. at 119–20, 122 S. Ct. at 591, 151 L. Ed. 2d at 504));

State v. Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980) (holding that

consent-search provision of a probation agreement was voluntary even

though defendant would have been sent to prison if he rejected it); State

v. Bollinger, 405 A.2d 432, 438 (N.J. Super. Ct. Law Div. 1979) (holding

14

defendant gave “a valid and knowing consent to a search of his dwelling

and automobile when he agreed [to the terms of probation]”); State v.

Mitchell, 207 S.E.2d 263, 264 (N.C. Ct. App. 1974) (holding a person may

consent to warrantless searches as a condition of a suspended sentence);

State v. Davis, 191 S.W.3d 118, 122 (Tenn. Crim. App. 2006) (“A

probationer consents to the waiver of his Fourth Amendment rights in

exchange for the opportunity to avoid incarceration.”); State v. Martinez,

811 P.2d 205, 209 (Utah Ct. App. 1991) (holding probationer

prospectively consents to searches by signing probation agreement);

Anderson v. Commonwealth, 507 S.E.2d 339, 341 (Va. 1998) (holding

defendant’s agreement to consent-search provision not coerced merely

because it was “one of two undesirable options”).

Some courts have concluded probationers do not voluntarily

consent to these search provisions, however. See United States v.

Consuelo-Gonzalez, 521 F.2d 259, 265 & n.15 (9th Cir. 1975) (rejecting

an argument that the “contract theory” of parole could be applied to

probationers so as to make “[s]ubmission to [to any search] the price of

probation”); Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979) (holding

condition of probation requiring probationer “to consent at any time to a

warrantless search by a law enforcement officer” was unconstitutional);

Commonwealth v. LaFrance, 525 N.E.2d 379, 381 n.3 (Mass. 1988) (“The

coercive quality of the circumstance in which a defendant seeks to avoid

incarceration by obtaining probation on certain conditions makes

principles of voluntary waiver and consent generally inapplicable.”);

Peterson, 233 N.W.2d at 255 (characterizing a search-provision of a

probation agreement as a “Bill of Attainder for the period of probation”

and holding that “when the waiver [was] conditioned on the surrender of

so hallowed a right, the so-called choice amount[ed] to no choice at all

15

[and] the probationer’s signed acceptance therefore was in legal effect

coerced and thus rendered nugatory” (footnote omitted)); State v.

Schlosser, 202 N.W.2d 136, 139 (N.D. 1972) (holding search provision in

probation order “constitute[d] a reasonable and necessary element of [the

court’s regulation of probationers,] which did not require the defendant’s

consent”); Tamez v. State, 534 S.W.2d 686, 692 (Tex. Crim. App. 1976)

(holding probationer’s acceptance of search provision of parole agreement

did not constitute “freely and voluntarily given” consent).

On the other hand, only a handful of courts have addressed the

same question in the context of parole agreements that we face in this

case, with mixed results. See United States ex rel. Coleman v. Smith, 395

F. Supp. 1155, 1157 (W.D.N.Y. 1975) (holding consent-search provision

in parole agreement was coerced and involuntary); Roman v. State, 570

P.2d 1235, 1241–42 (Alaska 1977) (holding released offenders do not

voluntarily consent to all conditions of parole); People v. Reyes, 968 P.2d

445, 448 (Cal. 1998) (holding suspicionless searches of parolees cannot

be justified by consent if prospective parolee does not have freedom to

accept or reject parole); People v. McCullough, 6 P.3d 774, 781 (Colo.

2000) (avoiding consent issue by relying on the special needs doctrine to

justify a parolee search); People v. Wilson, 885 N.E.2d 1033, 1042 (Ill.

2008) (adopting Samson instead of analyzing the parole agreement’s

search condition under a consent framework); State v. Heaton, 812

N.W.2d 904, 908 (Minn. Ct. App. 2012) (“By agreeing to [the search]

condition of parole, appellant diminished his reasonable expectation of

privacy.”); Himmage v. State, 496 P.2d 763, 765–66 (Nev. 1972) (holding

parolee voluntarily agreed to consent-search provision as a condition of

release into society); People v. Huntley, 371 N.E.2d 794, 798 (N.Y. 1977)

(holding the parolee’s signature on parole agreement “is not to be taken

16

as an unrestricted consent to any and all searches whatsoever or as a

blanket waiver of all constitutional rights to be secure from unreasonable

searches and seizures”); Sullivan v. Bunting, 975 N.E.2d 999, 1001 (Ohio

2012) (holding parolee consented to search of his e-mail based on the

parole agreement); State v. Benton, 695 N.E.2d 757, 762 (Ohio 1998)

(holding parolee waives constitutional search-and-seizure rights by

voluntarily signing parole agreement); Scott v. Pa. Bd. of Prob. & Parole,

698 A.2d 32, 36 (Pa. 1997) (holding parolee’s right to be free from

unreasonable searches and seizures was “unaffected by his signing of the

consent to search provision”), rev’d on other grounds, 524 U.S. 357, 369,

118 S. Ct. 2014, 2022, 141 L. Ed. 2d 344, 355 (1998); State v. Turner,

297 S.W.3d 155, 166 (Tenn. 2009) (adopting Samson “where the parolee

has agreed to warrantless searches by law enforcement officers”); State v.

Velasquez, 672 P.2d 1254, 1260 & n.4 (Utah 1983) (holding defendant

does not waive Fourth Amendment protection by signing parole

agreement, but the search condition does confirm right of parole officer

to conduct reasonable searches within scope of parole mission); Pena v.

State, 792 P.2d 1352, 1357–58 (Wyo. 1990) (“[A] parolee’s signature on a

parole agreement which permits warrantless searches as an

acknowledgement that parole officers have the right to conduct

reasonable searches.”); see also State v. Williams, 486 S.W.2d 468, 472

(Mo. 1972) (“[Parolees] have accepted the favor of parole subject to that

degree of surveillance and search required under the circumstances for

the effective supervision of the parolee and the protection of the public.”).

To begin our analysis, we largely set aside the cases dealing with

probation agreements. These cases are of limited value in analyzing the

consent issue in parole agreements because probationers often end up

on probation through plea bargaining and, consequently, maintain a

17

vastly superior bargaining power than parolees. Such a probationer has

the choice of demanding a trial to seek his or her freedom, which many

courts find gives rise to the type of bargaining power that renders

probation agreements consensual. See Barnett, 415 F.3d at 692

(“Nothing is more common than an individual’s consenting to a search

that would otherwise violate the Fourth Amendment, thinking that he

will be better off than he would be by standing on his rights.”). Thus, we

primarily focus on parolee cases.

More direct to the issue we must decide, our review of those cases

that enforce consent provisions of a parole agreement largely undervalue

the rights of parolees, rendering them inapposite for a helpful and tight

analysis under Iowa law. See Ochoa, 792 N.W.2d at 287–91. For

example, many of these cases simply follow Samson. See, e.g., Wilson,

885 N.E.2d at 1042 (applying Samson to a parole agreement with

different language than the language at issue in Samson); Turner, 297

S.W.3d at 166 (holding requirement that a prisoner agree to search

condition of parole “is reasonable in light of the parolee’s significantly

diminished privacy interests”). Like Samson, Wilson is not a true consent

case; it simply uses a search condition in a parole agreement to decrease

the parolee’s expectation of privacy to a nullity. See Wilson, 885 N.E.2d

at 1042; see also Samson, 547 U.S. at 852 n.3, 126 S. Ct. at 2199 n.3,

165 L. Ed. 2d at 259 n.3. Similarly, although it preceded Samson,

McCullough was not actually a consent case either, but rather a special

needs case that essentially used the special needs doctrine to reach the

result reached by Samson. See McCullough, 6 P.3d at 780–81. Likewise,

Sullivan did not analyze the facts of the case for anything resembling

voluntariness. See 975 N.E.2d at 1001. Neither did its jurisprudential

progenitor, Benton. See 695 N.E.2d at 761. Rather, Benton simply

18

concluded parolees may be subjected to suspicionless searches based on

policy grounds largely related to the parolee’s status. See id. Our

rejection of Samson in Ochoa leads us to reject these cases as well. See

792 N.W.2d at 287–91.

Additionally, two cases pique our concern that suspicionless

consent searches of parolees also impact persons who live with parolees.

See McFerrin v. State, 42 S.W.3d 529, 534–35 (Ark. 2001) (holding parole

officer could extract consent from parolee’s sister prior to parolee’s

release); Devore, 2 P.3d at 156–57 & nn.1, 2 (holding a search

notification form requiring parolee’s roommates to submit to

suspicionless searches created valid consent). Another case cogently

explains the fear about these cases. Roman, 570 P.2d at 1241–42. The

Roman court stated:

“Fourth amendment protection will be diminished not only

for parolees, but also for the family and friends with whom

the parolee might be living. Those bystanders may find

themselves subject to warrantless searches only because

they are good enough to shelter the parolee, and they may

therefore be less willing to help him—a sadly ironic result in

a system designed to encourage reintegration into society.

Moreover, the demeaning effect of arbitrary intrusions into

the parolee’s privacy will be reflected in the attitudes of his

relatives and friends. As a result, the parolee will suffer

diminished feelings of self-worth, making his rehabilitation

more difficult. In addition, warrantless parole officer

searches may reinforce patterns of resentment to authority,

and excessive external controls may inhibit the development

of necessary internal controls: ‘a person must have the

freedom to be responsible if he is to become responsibly

free.’ ”

Id. at 1243 (quoting Note, Striking the Balance Between Privacy and

Supervision: The Fourth Amendment and Parole and Probation Searches of

Parolees and Probationers, 51 N.Y.U. L. Rev. 800, 816–17 (1976)

(footnotes omitted)). Roman actually rejected consent as a rationale for

upholding searches of parolees, although it held limited searches of

19

parolees were acceptable under another rationale. See id. at 1241–42,

1243–44. These collective observations give us pause to follow this line

of authority.

Those courts in other states that have rejected consent derived

from parole agreements as a theory for upholding searches of parolees do

so on the basis that such a condition of parole is coercive and, therefore,

involuntary. See, e.g., Coleman, 395 F. Supp. at 1157. These courts not

only find the general surrounding circumstances tend to weigh against

consent, particularly the custodial nature of the setting that produces

parole, but also the limited choices available to a prisoner seeking parole.

Coleman, 395 F. Supp. at 1157. The temptation of the “return to

normalcy,” combined with the fact that the parolee’s choices are either to

waive Fourth Amendment rights or to remain incarcerated, render the

resulting agreement to waive all Fourth Amendment protection coercive

and invalid. Id.; cf. Tamez, 534 S.W.2d at 692 (“The choice to reject

probation and go to prison or accept probationary condition was really no

choice at all. It was in effect coerced.”). This approach actually

resembles the path we have already begun to forge.

We have previously recognized the absence of bargaining power by

a parolee in a parole agreement. In State v. Cullison, we rejected the

notion of using contract law to support a voluntary surrender of

constitutional rights by a parolee on the basis that parole involves the

situation in which the State “has all of the bargaining power,” which

renders the contractual nature of an agreement illusory. 173 N.W.2d

533, 536–37 (Iowa 1970). 2

2Without expressly saying so, we decided Cullison based on the Iowa

Constitution. Cullison, 173 N.W.2d at 537–38. The keystone of our reasoning there

was article II, section 5 of the Iowa Constitution, which strips Iowa prisoners of a single

20

The lack of free will by a parolee to support consent-search

provisions of parole agreements was also recognized in the dissent in

Samson, which we followed in Ochoa. In his dissent in Samson, Justice

Stevens found the notion of parolee consent-to-search provisions to be

“sophistry.” 547 U.S. at 863 n.4, 126 S. Ct. at 2206 n.4, 165 L. Ed. 2d

at 267 n.4 (Stevens, J., dissenting). In truth, a parolee simply

has no “choice” concerning the search condition; he may

either remain in prison, where he will be subjected to

suspicionless searches, or he may exit prison and still be

subject to suspicionless searches. Accordingly, “to speak of

consent in this context is to resort to a ‘manifest fiction,’ for

‘the [parolee] who purportedly waives his rights by accepting

such a condition has little genuine option to refuse.’ ”

Id. (quoting 5 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 10.10(b), at 440–41 (4th ed. 2004)).

Similarly, Justice Kennedy recognized the weakness of using

consent predicated on the acceptance of adverse consequences in his

concurring opinion in Ferguson v. City of Charleston, 532 U.S. 67, 90–91,

121 S. Ct. 1281, 1295, 149 L. Ed. 2d 205, 224 (2001) (Kennedy, J.,

concurring). While he disagreed with the majority’s analysis regarding

the purported special needs justification of a practice by a public hospital

to require pregnant mothers who displayed certain symptoms and

characteristics to consent to drug testing, Justice Kennedy also spoke in

his concurring opinion to the nature of the consent dictated by the

hospital. See id. He wrote:

___________________

right: the right to vote. Id. The Iowa Constitution does not strip prisoners or parolees

of other rights. Thus, it is apparent that our holding in Cullison—that a parolee enjoys

a comparable level of constitutional protection from unreasonable searches and

seizures as nonparolees—was inextricably tied to the Iowa Constitution. Of course, our

reliance on the Iowa Constitution would have been irrelevant if Cullison was a Federal

Fourth Amendment case.

21

An essential, distinguishing feature of the special

needs cases is that the person searched has consented,

though the usual voluntariness analysis is altered because

adverse consequences (e.g., dismissal from employment or

disqualification from playing on a high school sports team)

will follow from refusal. The person searched has given

consent, as defined to take into account that the consent

was not voluntary in the full sense of the word. The consent,

and the circumstances in which it was given, bear upon the

reasonableness of the whole special needs program.

Id. (citations omitted). Thus, both our prior precedent and a line of

authority outside Iowa has revealed that a consent-to-search clause in a

parole agreement would not necessarily satisfy the type of consent to

qualify as an exception to the search-and-seizure requirement under our

Iowa Constitution.

The academic community has also recognized weaknesses in

treating consent searches as voluntary searches in the context of the

grant of parole. Cf. David T. Reindl, Bargains or Unconstitutional

Contracts? How Enforcement of Probation Orders as Contracts Could Take

the Reasonableness Out of Probation Searches, 33 New Eng. J. on Crim.

& Civ. Confinement 123, 145–51 (2007). A predominant factor in this

observation is the government’s overwhelming bargaining power during

negotiations tends to render these contracts essentially contracts of

adhesion, with some particularly objectionable clauses and conditions of

these contracts being both procedurally and substantively

unconscionable. Id. at 149–51. Moreover, while the title of a legal

document is not dispositive, a contractual theory may be especially

inapplicable to parole conditions when, as in this case, they are part of a

document that is itself entitled “Order.” See id. at 146. That caption or

title properly captures the real character of the transaction. Indeed, it

has been noted that, while power imbalance can be a key factor in

determining the validity of a contract, it has been an important factor in

22

the consent-to-search context since before Schneckloth. Christo Lassiter,

Consent to Search by Ignorant People, 39 Tex. Tech L. Rev. 1171, 1189–

91 (2007).

Professor LaFave has written extensively in this area and has

concluded that a coercive atmosphere necessarily militates against

finding that an ostensive consent is voluntary. 4 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 66,

81–90 (5th ed. 2012) [hereinafter LaFave]. The coercive atmosphere of

physical detention in an official location is of the “greatest significance.”

Id. at 88. Professor LaFave concedes that “ ‘custody alone has never

been enough in itself to demonstrate [coercion].’ ” Id. at 84–85 (quoting

United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46

L. Ed. 2d 598, 609 (1976)). Nonetheless, LaFave emphasizes the

distinction between cases in which the subject of the search was either

“free to leave or was in familiar surroundings at the time” and cases in

which the search subject was in custody. Id. at 89–90 (footnotes

omitted). Indeed, LaFave suggests this distinction was pivotal to the

outcome of Schneckloth itself, stating, “[T]he Supreme Court [in

Schneckloth] noted that, ‘since consent searches will normally occur on a

person’s own familiar territory, the specter of incommunicado police

interrogation in some remote station house is simply inapposite.’ ” Id. at

89 (quoting Schneckloth, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2d

at 874).

LaFave’s recognition that “ ‘the location and conditions’ of even a

brief detention may be such as to foreclose a finding of voluntary

consent” is also instructive. Id. at 90 (footnote omitted) (quoting United

States v. Worley, 193 F.3d 380, 387 (6th Cir. 1999)). Even seemingly

innocuous circumstances such as a brief stop in an airport

23

“make it easy for implicit threats or subtle coercion to exert

tremendous pressure on an individual to acquiesce to the

officer’s wishes. In such a situation it would be easy to

misinterpret acquiescence to an officer’s demands as

consent; acquiescence cannot, of course, substitute for free

consent.”

Id. (quoting United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982)).

We have similarly recognized the potential for coercion even in brief

roadside stops. See State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011)

(holding officer’s request for consent in the squad car without informing

Pals he was free to leave or warning him regarding his right to refuse

consent was coercive). In other words, coercion can easily find its way

into human interaction when detention is involved.

LaFave has also traced the development of consent-to-search

clauses in probation and parole agreements to the now discredited “act of

grace” theory of parole. 5 LaFave § 10.10(b), at 527; see also Cullison,

173 N.W.2d at 536–37 (rejecting the “act of grace” theory of parole).3

LaFave notes the effort to revive the “act of grace” theory can be traced to

a 1967 article. 5 LaFave § 10.10(b), at 527. The article advised states to

“make the right to conduct a search and seizure . . . an

express condition of parole or probation, as the case may be,

which the defendant knowingly accepts. Constitutional

rights may be waived and if a court should hold that the

Fourth Amendment is applicable in these instances, the

rights could be waived in this manner.”

3The “act of grace” theory was built upon the argument that parole is a

“privilege.” 5 LaFave § 10.10(b), at 525–26. The United States Supreme Court rejected

this theory two years after the Iowa Supreme Court did. See Morrissey v. Brewer, 408

U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495 (1972). The Court stated:

It is hardly useful any longer to try to deal with this problem in terms of

whether the parolee’s liberty is a “right” or a “privilege.” By whatever

name, the liberty is valuable and must be seen as within the protection

of the Fourteenth Amendment.

Id.

24

Id. (quoting Alexander Holtzoff, The Power of Probation and Parole Officers

to Search and Seize, 31 Fed. Probation 3, 7 (1967)). As our own research

indicates, LaFave observed that many courts confronted with these

purported waivers of constitutional protections have approved of them.

Id. at 529–30.

However, LaFave disagrees with these holdings. Id. at 530–31. A

proper application of Schneckloth requires more than a superficial

inquiry into the existence of a parole agreement containing a consent

provision. Id. at 532. LaFave concludes by drawing a connection

between Schneckloth’s reliance on Fifth Amendment cases that analyze

the voluntariness of a confession and

the long established rule that a confession is not voluntary

when given in response to an assurance by the maker “that,

by so doing, he might at least obtain a mitigation of the

punishment for the crime which otherwise would assuredly

follow.”

Id. (quoting Bram v. United States, 168 U.S. 532, 565, 18 S. Ct. 183, 195,

42 L. Ed. 568, 581 (1897)). He doubts whether such a “quid pro quo . . .

could pass muster under Schneckloth” and opines this may be the very

reason the United States Supreme Court has consistently analyzed

searches of parolees and probationers on other grounds. Id.

Other commentators have argued that contractual thinking

nonetheless has a place in constitutional search-and-seizure analysis,

particularly when the government is not obligated to extend a certain

privilege or benefit in the first place. William J. Stuntz, Implicit Bargains,

Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 555

(1992) [hereinafter Stuntz]; see also Michael Chmelar, Contract Law and

Its Potential Impact on Parole and Probation Searches, 28 N. Ill. U. L. Rev.

43, 54–56 (2007); cf. Kathleen M. Sullivan, Unconstitutional Conditions,

25

102 Harv. L. Rev. 1413, 1422 (1989) (“What government benefits give rise

to unconstitutional conditions problems? Those benefits that

government is permitted but not compelled to provide. . . .

Unconstitutional conditions problems . . . do not arise if government is

obligated to provide a benefit.”). Yet, by analogy, while a government

could argue it could decline to offer public housing altogether and thus

should be able to require waiver of constitutional search-and-seizure

protection as consideration for offering the public housing in the first

place, this argument would be a “bluff,” given society’s acceptance of

public housing. Stuntz, 44 Stan. L. Rev. at 568. It would not necessarily

be a bluff if society did not value available options for affordable public

housing. Id. The application of these principles to searches of parolees

is somewhat difficult. On the one hand, granting parole decreases the

government’s financial burden of operating a prison system. See id. at

580. Articulating stricter standards for searches of parolees, on the

other hand, would likely limit the number of prisoners granted such

lighter treatment, as the costs of supervising probationers and parolees

would also rise. Id. at 581. Thus, this consequence would ultimately

have the effect of redistributing the loss of freedom from parolees subject

to enhanced supervision techniques to increased numbers of prisoners

whose grant of conditional freedom is either delayed or never granted.

Id.

Another commentator has argued that the government could not in

fact choose not to grant parole for at least some prisoners given that

prisons, like other government departments, face budgetary restrictions.

Antoine McNamara, Note, The “Special Needs” of Prison, Probation, and

Parole, 82 N.Y.U. L. Rev. 209, 237 (2007) [hereinafter McNamara].

McNamara notes that a recent study found that not offering parole or

26

probation would “more than triple the inmate population.” Id. at 237 &

n.191 (citing Lauren E. Glaze & Seri Palla, U.S. Dep’t of Justice, Bureau

of Statistics, Probation and Parole in the United States 1–2 (2005)).

Therefore, contrary to Judge Posner’s assertion in Barnett that parolees

and probationers “[give] up nothing” by agreeing to submit to

warrantless, suspicionless searches, see 415 F.3d at 692, the parolee or

probationer actually gets nothing in return for waiving their

constitutional search-and-seizure rights, McNamara, 82 N.Y.U. L. Rev. at

238.

Another article provides empirical data relevant to the other side of

Schneckloth’s policy balancing equation. In the context of waivers of

Fourth Amendment rights by probationers, one article surveyed forty-one

Wisconsin probation officers after the Supreme Court’s opinion in Griffin

and found that a blanket waiver of search-and-seizure protections that

“applies to all probationers is not necessary to adequately protect the

public.” See Howard P. Schneiderman, Comment, Conflicting

Perspectives from the Bench and the Field on Probationer Home

Searches—Griffin v. Wisconsin Reconsidered, 1989 Wis. L. Rev. 607, 610,

655 (1989) (arguing that, although probation officers appreciate

warrantless home searches, a low rate of frequency of home searches

combined with probation officer dislike of home searches indicates that

warrantless home searches are not necessary for the maintenance of

Wisconsin’s probation system). Indeed, Schneiderman acknowledges

that Justice Scalia’s analogy to administrative searches may be apt in

the context of home visits, but is inapposite in the context of “full-blown

searches,” which are generally conducted when the parole officer believes

that a parole violation or crime may be taking place. Id. at 656–57.

27

With all this in mind, we proceed to consider the voluntariness of a

prospective consent-to-search provision in a parole agreement used to

justify a search of a parolee. Importantly, the issue is not whether the

government can or cannot conduct a search of a parolee. The narrow

question before us is whether the government can conduct the search

based solely on consent required to be given by parolees as a condition of

release from prison. 4 Every search of a citizen by the government must

be supported by some recognized ground or justification, and we must

only decide if consent extracted from prisoners as a condition of release

on parole constitutes one such ground. We have no occasion in this case

to consider other grounds available to the State to justify such a search.

Unlike the situation in Zap, the voluntary nature of the consent to

search was not supported by the benefit of the bargain found on the face

of the parole agreement in this case. We appreciate that the bargain

under a contract can, at times, involve a choice between two unpalatable

4Our ultimate resolution of this case does not render the conditions of a parole

agreement unenforceable. The State may ordinarily impose any reasonable condition

on the grant of parole. Cf. State v. Valin, 724 N.W.2d 440, 445–46, 448–49 (Iowa 1996)

(recognizing the state may impose reasonable conditions of probation, but holding that

a probation condition requiring a sex offender who was convicted of operating while

intoxicated to be subjected to a penile plethysmograph exam for sexual arousal was

unreasonable). A violation of that condition can result in a revocation of parole and a

return to prison. Thus, our decision does not mean parolees are not required to follow

reasonable conditions of parole, including a reasonable search provision, or that they

could not have parole revoked for failing to comply with a term in the parole agreement.

This case only deals with the narrow question whether the government may enforce

compliance with a condition of probation through the contractual principle of consent.

The reasonableness standard does not supersede the voluntariness standard for

determining the validity of searches conducted to a purported consent. If it did, we

think very little would remain of the voluntariness standard articulated in Schneckloth.

This is precisely because the State imposes reasonable conditions; the prospective

parolee does not agree to them. See Iowa Admin. Code r. 201—45.1(2)(a) (“The parolee

may not be released on parole prior to the execution of the parole agreement. The

parole agreement shall contain the conditions of parole pursuant to rule 45.2(906) . . . .”

(emphasis added)); id. r. 201—45.2 (listing ten standards of condition of parolee with

which the parolee “shall” comply).

28

alternatives, which does not defeat the voluntariness of the consent. See

Barnett, 415 F.3d at 692 (declaring that a choice between accepting

probation as a term of a plea bargain is more valuable than the risk of

going to prison following a trial); Benton, 695 N.E.2d at 762 (rejecting an

argument that defendant “had no choice but to sign a waiver as a

condition of his parole, thereby implying that the waiver was not

voluntary”); Anderson, 507 S.E.2d at 341 (holding grant of consent in a

parole agreement was voluntary even though the terms of the agreement

were “dictated by the Commonwealth” and the defendant signed “only to

avoid time in jail”). However, this proposition does not mean a choice

between two unpalatable alternatives can never be coercive. See

Schneckloth, 412 U.S. at 224, 93 S. Ct. at 2046, 36 L. Ed. 2d at 861

(“ ‘Except where a person is unconscious or drugged or otherwise lacks

capacity for conscious choice, all incriminating statements—even those

made under brutal treatment—are “voluntary” in the sense of

representing a choice of alternatives.’ ” (quoting Paul M. Bator & James

Vorenberg, Arrest, Detention, Interrogation and Right to Counsel: Basic

Problems and Legislative Solutions, 66 Colum. L. Rev. 62, 72 (1966))).

Parole is simply one of those times when a choice to remain in prison

with no constitutional rights involving search and seizure or to gain

freedom with no constitutional rights involving search and seizure is

simply “no choice at all.” Tamez, 534 S.W.2d at 692. When a

constitutional right is at stake, more than a one-sided agreement is

needed to establish waiver of the right.

The obligation of courts to examine the voluntariness of an

agreement is nothing new and is supported by our law of contracts. For

instance, we refuse to enforce unconscionable contracts. See Casey v.

Lupkes, 286 N.W.2d 204, 207 (Iowa 1979) (recognizing unconscionability

29

as a generally available contract defense); see also Restatement (Second)

of Contracts § 208 (1981) (permitting a court to refuse to enforce all or

part of a contract if the contract was unconscionable when formed). The

doctrine is especially applicable to contracts of adhesion. See C & J

Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 179–81 (Iowa

1975). This refusal is based on a strong distaste for the enforcement of

unjust terms between parties of grossly disproportionate bargaining

power. As we quoted in a recent case:

“A bargain is not unconscionable merely because the parties

to it are unequal in bargaining position, nor even because

the inequality results in an allocation of risks to the weaker

party. But gross inequality of bargaining power, together with

terms unreasonably favorable to the stronger party, may

confirm indications that the transaction involved elements of

deception or compulsion, or may show that the weaker party

had no meaningful choice, no real alternative, or did not in

fact assent or appear to assent to the unfair terms.”

In re Marriage of Shanks, 758 N.W.2d 506, 515 (Iowa 2008) (quoting

Restatement (Second) of Contracts § 208 cmt. d). This language

accurately summarizes the nature of a consent-to-search provision in a

parole agreement and reveals that the failure to enforce search provisions

is consistent with other occasions when we have refused to enforce terms

of a contract that were, in all reality, not consensual.

A practical reality regarding the release of prisoners on parole

bolsters our conclusion. Generally, a prisoner in the Iowa state penal

system automatically earns one day of good-time credit for each day

served. See Iowa Code § 903A.2(1)(a). Accordingly, the time when parole

can be offered to an inmate is cut in half by good-time credits.

Additionally, parole in most cases is offered much earlier. For example,

according to a recent annual report from the board of parole, the average

time served in prison prior to obtaining parole on a conviction for

30

possession of marijuana with intent to distribute was only eighteen

months, not ten years. Iowa Board of Parole, Annual Report for State

Fiscal Year 2011 (2012), at 18 tbl. 6. The average time served prior to

the grant of parole for failure to affix a tax stamp was 18.6 months. Id.

The average time served for possession of a firearm by a felon was only

16.2 months, not five years. Id. Thus, the average prospective parolee

who committed the same crimes as Baldon would face more than eight

additional years in prison if he or she did not sign the parole agreement

containing a search provision. Under these circumstances, it is

unreasonable to believe that the reality of consent normally derived from

the benefits exchanged between the parties to a contract applies to parole

agreements. The amount of freedom typically at stake points to the

coercive nature of consent searches as a precondition to release.

Additionally, a prisoner essentially has nothing to bargain when it

comes to parole because the parole system does not offer early parole to

inmates who agree to be searched if paroled. Instead, inmates are

entitled to parole under a different calculation, but the parolee must

nevertheless agree to the terms of parole as a condition of release. Iowa

Admin. Code r. 201—45.1(2) (“The parolee may not be released on parole

prior to the execution of the parole agreement.”). Thus, the refusal to

consent to a warrantless and suspicionless search simply means many,

many more years in prison, while giving consent does not offer release to

a parolee earlier than otherwise entitled. More fundamentally, parolee

consent searches are conceptually detached from the concept of

bargaining because the State would be able to impose any reasonable

term of parole irrespective of the consent of the parolee.

From a practical standpoint, consent under these circumstances is

not real. We are duty bound to give the liberty in article I, section 8 of

31

our constitution the integrity it deserves and demands, and we must not

allow the government to avoid an important constitutional check on its

power by using an unfair play on human nature. To give article I,

section 8 its integrity, we must hold Baldon’s acceptance of the parole

agreement did not constitute consent under our precedent.

Moreover, there was no additional evidence in the record to reveal

Baldon voluntarily consented to a search, even in the absence of

bargaining power. The conclusory evidence in this case that Baldon read

and understood the terms of the parole agreement does not establish his

consent. Nevertheless, the State relied on the parole agreement alone to

establish consent, which we conclude is inadequate.

Considering our obligation to ensure that consent remains a

doctrine of voluntariness that functions with integrity, we conclude a

parole agreement containing a prospective search provision is insufficient

evidence to establish consent. Such a contract reveals an absence of

bargaining power on behalf of the parolee, rendering contract principles

inadequate to entitle the state to enforce compliance of a search

provision. The purported consent extracted from a prisoner as a

condition of release fails to constitute voluntary consent. As a

mandatory term of parole, such consent would also have the effect of

justifying the search on the basis of parole status. This is not permitted

under Ochoa. More is needed, and a consent provision in a parole

agreement does not supply this additional justification because it fails to

pass the test of voluntariness required under article I, section 8 of the

Iowa Constitution.

V. Conclusion.

For the reasons stated above, we hold that the search provision

contained in Baldon’s parole agreement does not represent a voluntary

32

grant of consent within our constitutional meaning. As such, the

suspicionless search of Baldon’s car violated article I, section 8 of the

Iowa Constitution. Accordingly, the district court’s denial of Baldon’s

motion to suppress is reversed, and the case is remanded to the district

court for further proceedings.

REVERSED AND REMANDED FOR NEW TRIAL.

Wiggins, Hecht, Appel, and Zager, JJ., join this opinion; Appel, J.,

files a separate concurring opinion; and Mansfield, J., files a dissenting

opinion in which Waterman, J., joins.

33

#10–0214, State v. Baldon

APPEL, Justice (concurring specially).

I join in the majority opinion, but write to review the foundations of

the well-established Iowa law that we jealously reserve our right to

construe our state constitution independently of decisions of the United

States Supreme Court interpreting parallel provisions of the Federal

Constitution.

I. Historic Role of State Constitutions.

A. State Constitutions, Declarations of Rights, and Judicial

Review Prior to Ratification of United States Constitution. Suppose

a leading historian asks you to identify a period in American history.

The historian tells you the period in question was “the most creative and

significant period of constitutionalism in modern Western history.” The

historian further advises you that many able and dedicated persons were

drawn away from their other important political responsibilities to engage

in legal drafting. Finally, the historian advises you that the end work

product of those who labored “captured the attention of intellectuals

everywhere in the world” and was “published and republished in several

European languages.” With these three clues, you might be tempted to

answer that the period being described is the several months in 1787

when the delegates to the Constitutional Convention in Philadelphia

drafted the United State Constitution. But you would be wrong.

The above description is based on the writing of Gordon Wood, a

leading historian of the Revolutionary Era and the Early Republic. He

was writing with such panache not about the Constitutional Convention

in Philadelphia, but about the period beginning in 1776 when states

began the process of drafting their own independent state constitutions.

See Gordon S. Wood, Foreword: State Constitution-Making in the

34

American Revolution, 24 Rutgers L.J. 911, 911, 913–14 (1993)

[hereinafter Wood].

While the Philadelphia convention and its aftermath have greater

notoriety today, the construction of independent state constitutions was

an important legal development. More than a decade before the

Constitutional Convention in Philadelphia, the Continental Congress in

May 1776 encouraged the establishment of state governments with “all

the powers of government exerted, under the authority of the people of

the colonies.” See Jack Rakove, The Beginnings of National Politics: An

Interpretative History of the Continental Congress 96–97 (1979); Merrill

Jensen, The Articles of Confederation: An Interpretation of the Social–

Constitutional History of the American Revolution 1774–1781 98 (1948);

see also IV Journals of the Continental Congress, 1774–1789 358

(Worthington C. Ford et al., ed. 1904–37) [hereinafter Journals of the

Continental Congress]. A few weeks later, the Declaration of

Independence declared that “these United Colonies are, and of Right

ought to be Free and Independent States.” The Declaration of

Independence para. 32 (U.S. 1776). By the time of the Declaration, the

states had already begun to develop their structures, including their

constitutions. Edmund S. Morgan, The Birth of the Republic, 1763–89

88–89 (3d ed. 1992) [hereinafter Morgan]; Wood, 24 Rutgers L.J. at 913.

John Adams, George Mason, James Madison, John Jay, and Governor

Morris, among others, participated in the drafting of these state

constitutions. I Melvin Urofsky & Paul Finkelman, A March of Liberty: A

Constitutional History of the United States 66, 69–70 (2d ed. 2011).

Thus, upon declaring independence, the people did not return to a

Hobbesian state of nature. Rather, the prior colonial governments

evolved into “Independent States” through a constitutional process. By

35

the end of 1776, ten state governments were in place, with the rest being

completed in 1780. Morgan at 90; Wood, 24 Rutgers L.J. at 913–14.

From the get-go, these state constitutions were designed to be stand

alone sources of law. As noted by Fletcher M. Green, the colonialists

debated extensively in the months preceding independence whether the

states should adopt a uniform constitution, to be prepared by the

Continental Congress. Fletcher M. Green, Constitutional Development in

the South Atlantic States, 1776–1860: A Study in the Evolution of

Democracy 52–54 (W.W. Norton & Co. 1966) [hereinafter Green].

Ultimately, following the proposal of John Adams, the Continental

Congress recommended that the states form their own constitutions that

“ ‘in the opinion of representatives of the people, best conduce to the

happiness and safety of their constituents in particular, and America in

general.’ ” Id. at 54 (quoting IV Journals of the Continental Congress at

342); see also Willi Paul Adams, The First American Constitutions:

Republican Ideology and the Making of State Constitutions in the

Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House

Books, expanded. ed. 2001) (describing Adams’s reasoning in

recommending to New Hampshire that it form its own government).

Thus, the colonialists expressly rejected uniformity. Green at 54.

The approval of the Articles of Confederation did not alter the

status of state constitutions as independent sources of law. The

constitutions of what the Declaration of Independence called

“Independent States” coexisted with the Articles of Confederation. Under

the Articles of Confederation, the states, not the people, were represented

in the Congress. John P. Kaminski, The Constitution Without a Bill of

Rights, in The Bill of Rights and the States: The Colonial and Revolutionary

Origins of American Liberties 16, 18 (Patrick T. Conley & John P.

36

Kaminski eds., 1992) [hereinafter Kaminski]. Article II of the Articles of

Confederation structured the relationship between the states and the

“United States, in Congress assembled.” See Articles of Confederation of

1781, art. II. It provided, “Each state retains its sovereignty, freedom,

and independence, and every power, jurisdiction and right, which is not

by this confederation expressly delegated to the United States, in

Congress assembled.” Id.

By the time of the Constitutional Convention in Philadelphia,

eleven states had written constitutions (Connecticut and Rhode Island

continued governance under modified colonial charters). Ralph

Ketcham, Introduction, in The Anti-Federalist Papers and the

Constitutional Convention Debates 1, 3 (Ralph Ketcham ed., 1986)

[hereinafter Ketcham]; Advisory Commission on Intergovernmental

Relations, State Constitutions in the Federal System 7 (1989) [hereinafter

State Constitutions in the Federal System]; see also generally Albert L.

Sturm, The Development of American State Constitutions, 12 Publius 57,

60–63 (1982). This state constitutional experience was recognized by

Thomas Jefferson, who is said to have calculated that by 1787 the states

collectively shared 150 years of experience in republican government.

Ketcham at 3. As a result, when the conclave opened in Philadelphia,

there was already a mature state constitutional tradition upon which the

founders could draw. Donald S. Lutz, The Origins of American

Constitutionalism 5 (1988). 5 Thus, the United States Constitution was

5There is substantial literature regarding the formation of state constitutions

prior to the adoption of the United States Constitution. See, e.g., Willi Paul Adams, The

First American Constitutions: Republican Ideology and the Making of State Constitutions

in the Revolutionary Era 55–56 (Rita & Robert Kimber trans., Madison House Books,

expanded. ed. 2001); The Constitutionalism of American States (George E. Connor &

Christopher W. Hammons eds., 2008); Marc W. Kruman, Between Authority and Liberty:

State Constitution Making in Revolutionary America (1997); see also Gordon S. Wood,

37

not created by some kind of legal Big Bang, but instead was the

outgrowth of colonial experience and state constitutional precedents.

Many of these early independent state constitutions had

declarations of rights or similar provisions. See 1 Jennifer Friesen, State

Constitutional Law: Litigating Individual Rights, Claims, and Defenses,

§ 1.03[1], at 1–7 to 1–10 (4th ed. 2006) [hereinafter Friesen]. Eight of

these early state constitutions (Virginia, Pennsylvania, Delaware,

Maryland, North Carolina, Vermont, Massachusetts, and New

Hampshire) had search and seizure provisions. Bernard Schwartz, The

Great Rights of Mankind: A History of the American Bill of Rights 88

(Madison House 1992) [hereinafter Schwartz]. Of particular interest is

the Massachusetts search and seizure provision. This important search

and seizure provision was drafted by John Adams, who as a young

lawyer was thrilled to hear James Otis rail in Paxton’s case against the

new writs of assistance issued by the English crown. See, e.g., Leonard

W. Levy, Origins of the Bill of Rights 157–59 (1999) [hereinafter Levy];

John M. Murrin, From Liberties to Rights: The Struggle in Colonial

Massachusetts, in The Bill of Rights and the States: The Colonial and

Revolutionary Origins of American Liberties 63, 88–91, 94 (Patrick T.

Conley & John P. Kaminski eds., 1992) [hereinafter Murrin]. Adams’s

experience influenced the text of the provision. Levy at 158; Murrin at

91. It states:

Every subject has a right to be secure from all unreasonable

searches, and seizures, of his person, his houses, his papers,

and all his possessions. All warrants, therefore, are contrary

to this right, if the cause or foundation of them be not

previously supported by oath or affirmation; and if the order

___________________

Foreword: State Constitution-Making in the American Revolution, 24 Rutgers L.J. 911

(1993).

38

in the warrant to a civil officer, to make search in suspected

places, or to arrest one or more suspected persons, or to

seize their property, be not accompanied with a special

designation of the persons or objects of search, arrest, or

seizure: and no warrant ought to be issued but in cases, and

with the formalities prescribed by the laws.

Mass. Const. of 1780, art. XIV.

In contrast to many of the Revolutionary Era state constitutions,

the Articles of Confederation had no bill of rights. Under the Articles of

Confederation, however, Congress had no power over individuals and

only limited authority with respect to the states. Kaminski at 18. Thus,

there arguably was no need for a bill of rights as Congress had no direct

authority over the people. Id.

In addition, state court judges operating under Revolutionary Era

state constitutions were developing the principle of judicial review in a

series of state constitutional cases decided before ratification of the

United States Constitution and Marbury v. Madison, 5 U.S. (1 Cranch)

137, 2 L. Ed. 60 (1803). On several occasions, state courts ruled state

statutes purporting to limit the right to jury trials were unconstitutional.

For example, in the 1780 New Jersey case of Holmes v. Walton, an

unpublished decision, the court found a statute permitting trial by a six-

man jury unconstitutional under the New Jersey Constitution. Schwartz

at 95; see also State v. Parkhurst, 9 N.J.L. 427, 444 (1802) (describing

that “the act upon solemn argument [in Holmes] was adjudged to be

unconstitutional, and in that case inoperative”). In 1786 and 1787, New

Hampshire courts found unconstitutional an act providing that certain

actions for damages totaling less than ten pounds could be tried by a

justice of the peace without a jury. William Michael Treanor, Judicial

Review Before Marbury, 58 Stan. L. Rev. 455, 475–76 & n.83 (2005). In

the unreported Rhode Island case Trevett v. Weeden, the Rhode Island

39

Supreme Court struck down a law passed in 1786 that imposed a

penalty, without requiring a jury trial, on those who did not accept the

state’s paper money in place of gold and silver. Id. at 476–78. In Bayard

v. Singleton, 1 N.C. (Mart.) 5 (1787), the North Carolina Supreme Court

concluded a statute barring loyalists from challenging the state’s seizure

of their property was unconstitutional because the North Carolina

Constitution provided for a jury trial whenever property was at issue in a

legal dispute. Treanor, 58 Stan. L. Rev. at 478–79. These pre-Marbury

cases expanded to other areas of the law. For example, in 1784 the New

York City Mayor’s Court held a statute could not override a treaty or

international law in Rutgers v. Waddington, also unreported. Schwartz at

97. See generally Treanor, 58 Stan. L. Rev. at 480–87. To arrive at this

conclusion, the court noted New York’s constitution adopted the common

law and, therefore, the law of nations. Treanor, 58 Stan. L. Rev. at 483.

In what has become known as the “Case of the Prisoners,” reported as

Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782), a number of Virginia

judges embraced judicial review in finding certain pardons

unconstitutional. See William Michael Treanor, The Case of the Prisoners

and the Origins of Judicial Review, 143 U. Pa. L. Rev. 491 (1994).

Three points emerge from the above discussion. First, prior to the

ratification of the United States Constitution, state constitutions, the

first American constitutions, were independent sources of law. Second,

many of the independent state constitutions, unlike the Articles of

Confederation, had bill-of-rights-type provisions designed to restrain

arbitrary government action, including provisions related to government

search and seizure. Finally, at least some state courts were developing

the principle of judicial review under their state constitutions decades

prior to Marbury v. Madison.

40

B. The Impact of Ratification and Adoption of the Bill of

Rights of the United States Constitution on Independent State

Constitutional Law. The United States Constitution was not designed

to obliterate the states and their preexisting constitutions, but to instead

draw them into a federal system with many of their functions largely

intact. As noted by Herbert Wechsler in the first sentence of his seminal

law review article, maintenance of the state’s residual sovereignty was

the “means and price of the formation of the Union.” Herbert Wechsler,

The Political Safeguards of Federalism: The Role of the States in the

Composition and Selection of the National Government, 54 Colum. L. Rev.

543, 543 (1954).

Of course, the proposed United States Constitution imposed

important limitations on the states. Federal law would prevail over state

law under the Supremacy Clause. 6 U.S. Const. art. VI, cl. 2. The

Guarantee Clause provided that the United States “shall guarantee” that

every state has a “Republican Form of Government.” Id. art. IV, § 4.

Further, Article I, Section 10 prohibited states from entering into treaties,

alliances or confederations, from coining money, from laying imposts or

duties on imports or exports except to an extent necessary to execute

inspection laws, from maintaining armies during times of peace, from

6Under the Supremacy Clause, “[T]he Judges in every State shall be bound [by

federal law], any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. As a result, the United States Supreme

Court has invalidated state constitutional provisions that violate the United States

Constitution. See, e.g., Romer v. Evans, 517 U.S. 620, 635–36, 116 S. Ct. 1620, 1629,

134 L. Ed. 2d 855, 868 (1996) (striking down Colorado constitutional provision affecting

gay rights); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783, 827, 115 S. Ct. 1842,

1845, 1866, 131 L. Ed. 2d 881, 888, 914–15 (1995) (striking down Arkansas

constitutional provision imposing term limits on members of Congress); Cummings v.

Missouri, 71 U.S. (4 Wall.) 277, 322–23, 329–30, 18 L. Ed. 356, 362–63, 365 (1867)

(striking down loyalty oath imposed by Missouri Constitution).

41

entering into alliances with foreign states, from engaging in war unless

actually invaded, and from enacting certain kinds of legislation, such as

bills of attainder, ex post facto laws, and laws impairing the right of

contracts. Id. art. I, § 10.

Although the draft United States Constitution contained a number

of provisions related to civil liberties,7 founders at the Constitutional

Convention in Philadelphia did not consider whether to include a bill of

rights in the proposed constitution until five days from the end of the

convention. Richard Labunski, James Madison and the Struggle for the

Bill of Rights 9 (2006) [hereinafter Labunski]. George Mason, who was

largely responsible for the Declaration of Rights in the Virginia

Constitution, and Elbridge Gerry of Massachusetts proposed that a

committee be appointed to draft bill of rights provisions to be

incorporated into the Federal Constitution. Id. at 8–12; see also Robert

Allen Rutland, The Birth of the Bill of Rights 1776–1791 112–13 (1955)

[hereinafter Rutland]. One scholar has suggested the convention decided

not to include a bill of rights perhaps out of fatigue as much as anything

else. Labunski at 9.

Overall, however, the founders looked to the states to protect

individual liberties. At the Constitutional Convention, James Wilson

observed that the purpose of the states was “to preserve the rights of

individuals.” I Records of the Federal Convention of 1787 356 (Max

7Civil liberties provisions in the original draft Constitution included the

prohibition against suspension of the writ of habeas corpus except in case of rebellion

or invasion, the prohibitions of bills of attainder and ex post facto laws, the provisions

for impeachment of all civil officers, the guarantee of jury trials in criminal cases, the

narrow definition of treason, and the ban on religious qualifications for office holding.

See U.S. Const. art. I, § 9, cls. 2–3; id. art. II, § 4; id. art. III, § 2, cl. 3; id. art. III, § 3, cl.

1; id. art. VI, cl. 3.

42

Farrand ed., 1937). Similarly, in Federalist No. 45, Madison stressed

that under the Constitution, “The powers reserved to the several States

will extend to all the objects, which, in the ordinary course of affairs,

concern the lives, liberties and properties of the people . . . .” The

Federalist No. 45, at 236 (James Madison) (Garry Wills ed., 1982).

Madison repeated the liberty theme in Federalist No. 51 by declaring, “In

the compound republic of America, the power surrendered by the people,

is first divided between two distinct governments . . . . Hence, a double

security arises to the rights of the people.” The Federalist No. 51, at 264

(James Madison) (Garry Wills ed., 1982) (emphasis added).

Notwithstanding Madison’s efforts, antifederalists made much hay

over the failure of the Constitution to ensure in more specific language

that the power of states would be preserved. See Pauline Maier,

Ratification: The People Debate the Constitution, 1787–1788 86–95 (2010)

[hereinafter Maier]. As noted above, the Articles of Confederation

expressly reserved all powers except those specifically enumerated to the

states. Opponents of the Constitution wondered why such a provision

was omitted from the proposed United States Constitution. See, e.g., id.

at 90–92.

In addition, opponents to the Constitution asked why the framers

failed to include a bill of rights. See, e.g., id. at 44, 87. Opponents noted

that many state constitutions contained a bill of rights, and they

wondered why a similar approach was not taken in the United States

Constitution. Id. at 44 (citing views of George Mason). The response of

the supporters of the Constitution that the federal government was one

of enumerated powers and that a bill of rights was therefore unnecessary

was unpersuasive to many. Id. at 79.

43

While proponents of the Constitution were able to obtain

unconditional ratification of the Constitution, their success was in part

obtained by agreeing to a process in which future curative amendments

to the Constitution would be considered. See, e.g., Kaminski at 25–38

(providing overview of ratification process, in which seven states,

including Massachusetts, Virginia, and New York, ratified the

Constitution and proposed amendments); Maier at 192–98 (describing

the striking of a deal between the Federalists and John Hancock that

included proposing future amendments to the Constitution at the first

meeting of Congress and political support for Hancock in future

elections). Relying in part on the rights provisions of the Massachusetts

and Pennsylvania Constitutions, Madison drafted and Congress proposed

amendments to the ratified United States Constitution that came to be

known as the Bill of Rights. See, e.g., Levy at 35–43; Rutland at 202.

The addition of the Bill of Rights to the United States Constitution

did not affect the independent nature of state constitutional provisions

related to civil liberties. Under the Tenth Amendment, “powers not

delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.” U.S.

Const. amend. X. Plainly, the United States Constitution does not

delegate the judicial power to provide final, authoritative interpretation of

state constitutions. And while there are many provisions of the United

States Constitution limiting the power of states, there are no provisions

prohibiting or restricting the power of state courts to interpret

authoritatively their state constitutions. See State v. Schwartz, 689

N.W.2d 430, 438 (S.D. 2004) (Konenkamp, J., concurring) (citing Tenth

Amendment in finding that state supreme court had an obligation to

decide whether the South Dakota Constitution required stricter

44

standards for search and seizure than required by the United States

Constitution).

The new amendments to the United States Constitution created a

Federal Bill of Rights. These provisions were not originally thought to

apply against the states. The issue was confronted in Barron v. Mayor of

Baltimore, 32 U.S. (7 Pet.) 243, 250–51, 8 L. Ed. 672, 675 (1833), when

the strongly nationalistic Chief Justice John Marshall wrote for the

United States Supreme Court that the provisions of the Federal Bill of

Rights did not apply against the states. Chief Justice Marshall wrote,

“Each state established a constitution for itself, and in that constitution,

provided such limitations and restrictions on the powers of its particular

government, as its judgment dictated.” Id. at 247, 8 L. Ed. at 674. Thus,

the Federal Bill of Rights did not supplant the state constitutional

provisions upon which it was patterned, nor did it trump the provisions

of state constitutions adopted after its enactment.

The result of Barron was “that state protections of liberty were

more relevant to most people than the protections in the federal Bill of

Rights.” Paul Finkelman & Stephen E. Gottlieb, Introduction: State

Constitutions and American Liberties, in Toward a Usable Past: Liberty

Under State Constitutions 9 (Paul Finkelman & Stephen E. Gottlieb eds.,

1991). As noted by Chief Justice Cady,

Our Iowa Constitution, like other state constitutions, was

designed to be the primary defense for individual rights, with

the United States Constitution Bill of Rights serving only as

a second layer of protection, especially considering the latter

applied only to actions by the federal government for most of

our country’s history.

45

Mark S. Cady, A Pioneer’s Constitution: How Iowa’s Constitutional History

Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and

Civil Liberties, 60 Drake L. Rev. 1133, 1145 (2012).

At the time of the adoption of the current Iowa Constitution in

1857, Barron was good law. As a result, the Iowa Constitution contains

a number of provisions, including article I, section 8, Iowa’s search and

seizure provision, which are designed to protect individual liberties

against encroachment by state officials. See generally Iowa Const. arts.

I–II. While contemporary sources related to the Iowa Constitutional

Convention are limited, there is no reason to conclude the framers of the

Iowa Constitution expected that article I, section 8 would receive a

cramped interpretation. They placed the Iowa Bill of Rights at the

beginning of the Iowa Constitution to emphasize its importance. State v.

Ochoa, 792 N.W.2d 260, 274 (Iowa 2010). This priority placement has

led one observer to declare that, more than the United States

Constitution, the Iowa Constitution “emphasizes rights over mechanics.”

Donald P. Racheter, The Iowa Constitution: Rights over Mechanics, in The

Constitutionalism of American States 479, 479 (George E. Connor &

Christopher W. Hammons eds., 2008). Further, George Ellis, Chairman

of the Committee on the Preamble and Bill of Rights, stated the

committee wanted provisions in the Iowa Bill of Rights that “would

enlarge, and not curtail the rights of the people” and would “put upon

record every guarantee that could be legitimately placed there in order

that Iowa . . . might . . . have the best and most clearly defined Bill of

Rights.” 1 The Debates of the Constitutional Convention of the State of

Iowa 100 (W. Blair Lord rep., 1857). The committee did not consider

itself some kind of Committee on Constitutional Redundancy and

Duplication. Like the drafters of Revolutionary Era state constitutions

46

that predated the United States Constitution, the Iowa founders

considered the development of independent state constitutional rights as

serious business.

In sum, the ratification of the United States Constitution and the

subsequent adoption of the Bill of Rights had no impact on the status of

state constitutions as an independent source of law. Moreover, the

drafters of the Iowa Constitution were well aware of this basic feature of

the federalist system when they fashioned the independent civil liberties

provisions of the Iowa Constitution of 1857.

C. Impact of the Civil War Amendments on Independent State

Constitutional Law. The passage of the Thirteenth, Fourteenth, and

Fifteenth Amendments after the Civil War significantly altered the

relationship between the federal government and the states. In

particular, unlike most of the provisions of the original Bill of Rights in

the United States Constitution, the Equal Protection, Due Process, and

Privileges and Immunities Clauses of the Fourteenth Amendment

expressly applied against the states. See U.S. Const. amend. XIV, § 1.

Like the passage of the Bill of Rights, the enactment of the Civil

War Amendments did not alter state constitutions as an independent

source of law. Instead, they simply provided a federal overlay to the state

constitutional regime recognized by Chief Justice Marshall in Barron. As

noted by Michigan Supreme Court Justice Thomas Cooley shortly after

the Civil War, each state had the power to determine for itself what

provisions are in its state constitution and “what protection shall be

thrown around the person or property of the citizen.” Thomas M. Cooley,

A Treatise on the Constitutional Limitations Which Rest Upon the

Legislative Power of the States of the American Union 33 (Legal Classics

Library 1987) (1868).

47

After the Civil War, the Iowa Supreme Court recognized its

independent authority to construe the state constitution. In McClure v.

Owen, 26 Iowa 243, 255 (1868), we declared:

It does not require argument to show that the . . .

same principles that require the federal courts to follow the

decisions of the State courts in construing statutes, and to

recognize rules of local law, require the federal courts to

follow the construction given the Constitution by the highest

State tribunal. There is no distinction that warrants the

disregard of the rule in cases involving the construction of

the State Constitution.

On questions of human rights, Iowa courts have traditionally

demonstrated a remarkably broad vision. In In re Ralph, 1 Morris 1, 7

(1839), the Territorial Supreme Court rejected a claim that a slave

present in a free state should be returned to his master, noting that

under Iowa law a slave within the free territory of Iowa is not “property”

and that the laws regarding illegal restraint apply “to men of all colors

and conditions.” While not based on the yet unadopted Iowa

Constitution, the broad reasoning, tone, and attitude toward equality in

In re Ralph stands in striking contrast to the disastrous majority opinion

of the United States Supreme Court nearly two decades later in Dred

Scott v. Sanford, 60 U.S. 393, 15 L. Ed. 691 (1857).

In Clark v. Board of Directors, 24 Iowa 266 (1868), we rejected the

argument that a school district could forbid African American children

from attending a school with whites on grounds of race. In Clark, our

interpretation of applicable statutes was driven by a broad conception of

article IX, section 12 of the Iowa Constitution, which requires the

education of “all the youths of the State.” Id. at 274–77. In Coger v.

Northwest Union Packet Co., 37 Iowa 145 (1873), we rejected the notion

that African Americans could be subjected to different treatment when

48

being transported by public carriers. In reaching this far-sighted

conclusion, we cited article I, section 1 of the Iowa Constitution, which

declares, “All men are, by nature, free and equal,” and noted that “[u]pon

it we rest our conclusion in this case.” Id. at 153–55. These Iowa

equality cases have little in common with the majority opinion of the

United States Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16

S. Ct. 1138, 41 L. Ed. 256 (1896), and much more in common with the

powerful dissent by Justice John Marshall Harlan, id. at 555–64, 16 S.

Ct. at 1145–48, 41 L. Ed. at 262–65 (Harlan, J., dissenting).

The independent Iowa constitutional tradition was repeatedly

recognized in the first half of the twentieth century. In State v. Height,

117 Iowa 650, 654–55, 91 N.W. 935, 938 (1902), we held as a matter of

state constitutional law that the privilege against self-incrimination was

incorporated in the due process clause of article I, section 9 of the Iowa

Constitution even though at the time the United States Supreme Court

did not incorporate the Fifth Amendment against the states pursuant to

the Due Process Clause of the Fourteenth Amendment. Then, in

McCollum v. McConaughy, 141 Iowa 172, 176, 119 N.W. 539, 540–41

(1909), we noted that, although we followed the United States Supreme

Court’s pronouncements on questions of federal constitutional law, in

our construction of a parallel state constitutional provision, “[w]e are not

bound . . . by any obligation imposed upon us in the federal Constitution

to uphold a State statute merely because, in the view of the Supreme

Court of the United States, it is not unconstitutional.”

The responsibility of this court to exercise independent judgment

under the Iowa Constitution was well illustrated in State v. Tonn, 195

Iowa 94, 191 N.W. 530 (1923). In Tonn, we considered whether holdings

by the United States Supreme Court in Boyd v. United States, 116 U.S.

49

616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), under the Fourth and Fifth

Amendments of the United States Constitution should be followed under

parallel provisions of the Iowa Constitution. Tonn, 195 Iowa at 104, 191

N.W. at 535. In Boyd, the United States Supreme Court held that the

forced production of business papers absent probable cause and their

admission at a subsequent hearing “were erroneous and

unconstitutional proceedings.” 116 U.S. at 638, 6 S. Ct. at 536–37, 29 L.

Ed. at 754. Using a methodology anticipating our approach in State v.

Cline, 617 N.W.2d 277 (Iowa 2000), abrogated on other grounds by State

v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001), State v. Ochoa, 792

N.W.2d 260 (Iowa 2010), and State v. Pals, 805 N.W.2d 767 (Iowa 2011),

the majority in Tonn noted that the decision of the United States

Supreme Court in Boyd “give[s] us pause” and then proceeded to canvas

academic authorities, authorities in other states, and dissenting federal

cases in concluding the approach of the United States Supreme Court in

Boyd should no longer be followed in Iowa. Tonn, 195 Iowa at 103–09,

191 N.W. at 534–36 (internal quotation marks omitted). In Cline, we

rejected Tonn, holding the “good faith exception” to the exclusionary rule

was incompatible with article I, section 8 of the Iowa Constitution. Cline,

617 N.W.2d at 292–93. Nonetheless, the approach in Tonn shows

judicial recognition in Iowa of this court’s responsibility to engage in

independent constitutional analysis of state constitutional provisions

that parallel federal constitutional provisions.

Clearly, the Civil War Amendments to the United States

Constitution did not supplant the provisions of the Iowa Bill of Rights.

Our remarkable legal heritage demonstrates that construction by the

United States Supreme Court of a parallel provision of the United States

Constitution does not bind our court on issues under the Iowa

50

Constitution. Independent state constitutional analysis is nothing new,

but has been long recognized in Iowa law.

D. Incorporation of the Bill of Rights Through the Due Process

Clause. Beginning in 1925, the United States Supreme Court

incorporated provisions of the Bill of Rights of the United States

Constitution against the states under the Due Process Clause of the

Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666, 45

S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925) (stating freedoms of speech

and press are so fundamental that they are protected from state

interference under the Due Process Clause). For the Fourth Amendment,

this process began with Wolf v. Colorado, 338 U.S. 25, 27–28, 69 S. Ct.

1359, 1361, 93 L. Ed. 1782, 1785–86 (1949), and was extended by Mapp

v. Ohio, 367 U.S. 643, 660, 81 S. Ct. 1684, 1694, 6 L. Ed. 2d 1081, 1093

(1961). Nothing in the Supreme Court’s incorporation doctrine as it

related to the Fourth Amendment altered the independent nature of state

constitutional provisions related to search and seizure. Instead,

incorporation of the provisions of the Bill of Rights of the United States

Constitution against the states through the Due Process Clause of the

Fourteenth Amendment established a federal floor related to civil

liberties.

While incorporation was a major constitutional advancement,

Justice John Marshall Harlan II was concerned that the nationalization

of the Bill of Rights’ protections would lead to a substantive dilution of

those protections. 8 See Patrick E. Higginbotham, The Continuing

8Of course, it is impossible to determine the degree to which the changes in the

United States Supreme Court’s Fourth Amendment jurisprudence were due to the

“federalism discount” that Harlan predicted or to changes in personnel on the United

States Supreme Court. Explicit statements in Supreme Court opinions during the post-

incorporation era show sensitivity to federalism concerns. Meachum v. Fano, 427 U.S.

51

Dialogue of Federalism, 45 U. Kan. L. Rev. 985, 988–91 (1997). In the

search and seizure case of Ker v. California, 374 U.S. 23, 46, 83 S. Ct.

1623, 1646, 10 L. Ed. 2d 726, 745 (1963) (Harlan, J., concurring),

Justice Harlan wondered whether the United States Supreme Court

“[was] prepared to relax Fourth Amendment standards in order to avoid

unduly fettering the States.” A few years later, Justice Harlan saw “a

major danger of the ‘incorporation’ approach—that provisions of the Bill

of Rights may be watered down in the needless pursuit of uniformity.”

Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88 S. Ct. 1444, 1466 n.21,

20 L. Ed. 2d 491, 514 n.21 (1968) (Harlan, J., dissenting). In his dissent

___________________

215, 229, 96 S. Ct. 2532, 2540, 49 L. Ed. 2d 451, 462 (1976) (rejecting an approach to

impose through the Due Process Clause “a nationwide rule mandating transfer

hearings”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S. Ct. 1278,

1302, 36 L. Ed. 2d 16, 49 (1973) (noting that “it would be difficult to imagine” a case

with greater impact on the federal system if the Court would abrogate systems of

financing public education); Johnson v. Louisiana, 406 U.S. 356, 375, 92 S. Ct. 1620,

1640, 32 L. Ed. 2d 152, 167 (1972) (Powell, J., concurring) (arguing that incorporating

“ ‘jot-for-jot and case-for-case’ every element of the Sixth Amendment” against the

states would derogate “principles of federalism basic to our system”). The tendency of

the United States Supreme Court to underenforce constitutional norms due to the

national scope of the Court’s opinions is recognized in the literature. See, e.g.,

Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv. L.

Rev. 1324, 1351–60 (1982) (citing institutional differences, the need for national

solutions, and sensitivities to federalism as tending to dilute federal constitutional

rulings and compelling a cautious and conservative approach to rules while noting state

judges are more politically responsive, states have a greater capacity for innovation, and

state judiciaries are common law courts that are more used to policy analysis);

Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional

Norms, 91 Harv. L. Rev. 1212, 1218–20 (1978); George C. Thomas III, When

Constitutional Worlds Collide: Resurrecting the Framers’ Bill of Rights and Criminal

Procedure, 100 Mich. L. Rev. 145, 147–48 (2001) (noting the Court has never had the

appetite to apply the provisions of the Federal Bill of Rights to the states as rigorously

as it has applied them to the federal government). The tendency to dilute constitutional

rules as a result of federalism concerns has been cited in a number of state court cases.

See, e.g., State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring)

(observing Supreme Court has been “hesitant to impose on a national level far-reaching

constitutional rules binding on each and every state”); Alderwood Assocs. v. Washington

Envtl. Council, 635 P.2d 108, 115 (Wash. 1981) (noting that rules in United States

Supreme Court decisions “invariably represent[] the lowest common denominator”).

52

in Williams v. Florida, 399 U.S. 78, 136, 90 S. Ct. 1893, 1925, 26 L. Ed.

2d 446, 474 (1970) (Harlan, J., dissenting), Justice Harlan noted that the

decision to establish a six person jury “simply reflects the lowest

common denominator in the scope and function of the right to trial by

jury in this country.” Finally, in a draft concurrence to Johnson v.

Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), and

Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 184 (1972),

that was never filed because of his intervening death, Justice Harlan

wrote that incorporation threatened “ ‘to chill the Sixth Amendment out

of existence’ and ‘might well spell the demise—under the inescapable

pressures of federalism—of many other provisions of the Bill of Rights.’ ”

Tinsely E. Yarbrough, John Marshall Harlan: Great Dissenter of the

Warren Court 291 (1992) (internal quotation marks omitted).

In the period following the incorporation revolution ending with

Mapp, there is no doubt the strength and scope of the Fourth

Amendment’s protection has been dramatically reduced by the United

States Supreme Court. Pre-Mapp, there were a couple exceptions to the

warrant requirement; post-Mapp there are nearly two dozen such

exceptions. California v. Acevedo, 500 U.S. 565, 582–83, 111 S. Ct.

1982, 1992–93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J., concurring).

The role of consent has been changed from its narrow characterization in

Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897),

and Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461

(1938), to its protean formulation in Schneckloth v. Bustamonte, 412 U.S.

218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The strength of the

exclusionary rule in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341,

58 L. Ed. 652 (1914), has been substantially eroded by the “good faith

53

exception” to the exclusionary rule. See United States v. Leon, 468 U.S.

897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

As a result, in implicit recognition of the difficulties arising from

incorporation of the Bill of Rights into a national system of rules, the

post-incorporation United States Supreme Court has repeatedly

emphasized the ability of states to expand the scope of constitutional

protections under their state constitutions. See, e.g., California v.

Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1630, 100 L. Ed. 2d 30, 39

(1988) (“Individual States may surely construe their own constitutions as

imposing more stringent constraints on police conduct than does the

Federal Constitution.”); Michigan v. Mosley, 423 U.S. 96, 120, 96 S. Ct.

321, 334, 46 L. Ed. 2d 313, 331 (1975) (Brennan, J., dissenting) (calling

on states “to impose higher standards governing police practices under

state law than [are] required by the Federal Constitution”); Oregon v.

Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570, 575

(1975) (repeating that “a State is free as a matter of its own law to impose

greater restrictions . . . than those this Court holds to be necessary upon

federal constitutional standards” (emphasis added)); Cooper v. California,

386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730, 734 (1967) (noting

that Supreme Court holding “does not affect the State’s power to impose

higher standards on searches and seizures than required by the Federal

Constitution if it chooses to do so”). See generally Shirley S.

Abrahamson, Criminal Law and State Constitutions: The Emergence of

State Constitutional Law, 63 Tex. L. Rev. 1141, 1142 n.3 (1985)

[hereinafter Abrahamson] (discussing cases). In 2008, Justice Scalia

observed in Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 1607,

170 L. Ed. 2d 559, 571 (2008), that “States are free to regulate

[warrantless] arrests however they desire.”

54

Cumulatively, the realities in the post-incorporation era were as

follows: the United States Supreme Court incorporated most of the Bill of

Rights provisions of the United States Constitution against the states

through the Due Process Clause of the Fourteenth Amendment, but as a

result, federalism concerns exerted a new narrowing and restraining

influence on the interpretation of federal civil liberties provisions. In the

post-incorporation era, the United States Supreme Court repeatedly

emphasized the ability of states to adopt more stringent protections

under state constitutions.

II. Status of Independent State Constitutional Law Today

After Incorporation of the Bill of Rights.

A. Rebirth of Independent State Constitutional Law. After

incorporation, many state courts tended to follow or adopt the approach

of the United States Supreme Court in interpretation of parallel

provisions under state constitutions. This tendency to simply follow

federal caselaw was in part due to the fact that federal law was more

expansive than prior state constitutional law. Lawyers also often relied

solely on federal constitutional law or regarded state and federal law as

interchangeable in their advocacy in state courts. See State Constitutions

in the Federal System at 49.

Beginning in the 1960s, however, a growing number of states

began to rediscover the independent nature of their state constitutional

provisions. Sometimes called the “new judicial federalism,” the high

courts of California, New York, New Jersey, Oregon, Washington, and

Wisconsin were particularly active, followed by those of New Mexico,

Indiana, Georgia, Ohio, Michigan, Connecticut, Minnesota, Utah,

55

Pennsylvania, and many other states. 9 The cases characterize the

examination of independent state constitutional grounds by state courts

not as some kind of aberration, but as a solemn duty. See, e.g., Burling

v. Chandler, 804 A.2d 471, 476 (N.H. 2002) (per curiam) (recognizing that

oath taken to honor state constitution makes it the justices’ duty to

apply the state constitution when it does not conflict with the Federal

Constitution); Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999)

(noting even when Federal Constitutional claim is discharged, supreme

court must undertake independent analysis of Pennsylvania Constitution

“ ‘each time a provision of that fundamental document is implicated’ ”

(citation omitted)); State v. Johnson, 729 N.W.2d 182, 189 n.7 (Wis. 2007)

(observing court’s duty to examine state constitution independently even

if conclusion does not differ from that under Federal Constitution).

As noted by Professor G. Alan Tarr more than a decade ago, the

emphasis on the independent nature of state constitutions of the “new

judicial federalism” is simply “no longer new.” G. Alan Tarr, The New

Judicial Federalism in Perspective, 72 Notre Dame L. Rev. 1097, 1098–99

9There is voluminous literature on the independent power of state judiciaries to

construe provisions of their state constitutions. The most encyclopedic volume focusing

on individual rights is Jennifer Friesen, State Constitutional Law: Litigating Individual

Rights, Claims, and Defenses (4th ed. 2006). Three frequently cited surveys of state

constitutional law are James A. Gardner, Interpreting State Constitutions: A

Jurisprudence of Function in a Federal System (2005), G. Alan Tarr, Understanding State

Constitutions (1998), and Robert F. Williams, The Law of American State Constitutions

(2009). See also New Frontiers of State Constitutional Law: Dual Enforcement of Norms

(James A. Gardner & Jim Rossi eds., 2011); Robert A. Schapiro, Polyphonic Federalism:

Toward the Protection of Fundamental Rights (2009); Jeffrey M. Shaman, Equality and

Liberty in the Golden Age of State Constitutional Law (2008); Michael E. Solimine &

James L. Walker, Respecting State Courts: The Inevitability of Judicial Federalism (1999);

G. Alan Tarr & Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation

(1988); Toward a Usable Past: Liberty Under State Constitutions (Paul Finkelman &

Stephen E. Gottlieb eds., 1991). Many of the concepts in this opinion have been

developed and elaborated upon by Robert F. Williams in The Law of American State

Constitutions and Jennifer Friesen in State Constitutional Law: Litigating Individual

Rights, Claims, and Defenses.

56

(1997). Contemporary courts and scholars have recognized and

reaffirmed the historically well-established concepts that state

constitutional provisions are independent of parallel provisions of the

Federal Constitution and that state supreme courts may depart from

existing federal precedent in reaching their conclusions regarding state

constitutional law. There are textbooks, 10 monographs, 11 hundreds of

law review articles,12 and thousands of reported cases discussing the

independent nature of state constitutional provisions.

10See, e.g., Jennifer Friesen, State Constitutional Law: Litigating Individual

Rights, Claims, and Defenses (4th ed. 2006) [hereinafter Friesen]; Randy J. Holland,

Stephen R. McAllister, Jeffrey M. Shaman & Jeffrey S. Sutton, State Constitutional Law:

The Modern Experience (2010); Robert F. Williams, State Constitutional Law: Cases and

Materials (4th ed. 2006).

11See Tim J. Watts, State Constitutional Law Development: A Bibliography 3–5

(1991) (listing monographs published prior to 1991 on state constitutional law).

12See id. at 5–36 (listing over 400 articles published prior to 1991 on state

constitutional grounds). A tiny sampling of the literature on state constitutional law

dealing with the developments in specific states includes Charles W. Johnson & Scott P.

Beetham, The Origin of Article I, Section 7 of the Washington State Constitution, 31

Seattle U. L. Rev. 431 (2008); Patty Jones, Search and Seizure—Methodological

Contention Results in Conflicting Authority When Deciding Similar State and Federal

Constitutional Claims. Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001), 33 Rutgers L.J.

1462 (2002); Jack L. Landau, The Search for the Meaning of Oregon’s Search and

Seizure Clause, 87 Or. L. Rev. 819 (2008); Jack L. Landau, Should State Courts Depart

from the Fourth Amendment? Search and Seizure, State Constitutions, and the Oregon

Experience, 77 Miss. L.J. 369 (2007); Douglas Holden Wigdor, What’s in a Word?

Comparative Analysis of Article I, § 12 of the New York State Constitution and the Fourth

Amendment to the United States Constitution as Interpreted by the New York Court of

Appeals and the United States Supreme Court, 14 Touro L. Rev. 757 (2008); Colin M.

Black, Note, “Shooting an Elephant”—Massachusetts Maintains Reasonable Suspicion:

Protecting Individual Privacy During Traffic Stops and Battling Racial Profiling, 6 Suffolk

J. Trial & App. Advoc. 215 (2001); Dennis J. Buffone, Note, Traffic Stops, Reasonable

Suspicion, and the Commonwealth of Pennsylvania: A State Constitutional Analysis, 69

U. Pitt. L. Rev. 331 (2007); Richard C. Miller, Comment, Begging to Defer: Lessons in

Judicial Federalism from Colorado Search and Seizure Jurisprudence, 76 U. Colo. L. Rev.

865 (2005); and Kenneth F. Kirwin, Minnesota’s Constitution: An Essential Tool in

Search and Seizure Cases, 65 Bench & Bar Minn., Nov. 1, 2008, at 29.

57

The development of independent state constitutional law has not

always been a smooth process. A number of state supreme courts have

expressed frustration with lawyers who have failed to advance state

constitutional arguments. In order to encourage proper advocacy, a

number of state supreme courts have published what are referred to in

the literature as “teaching opinions,” which review the rationale for

independent state constitutional grounds. See, e.g., Friedman v. Comm’r

of Pub. Safety, 473 N.W.2d 828 (Minn. 1991); Davenport v. Garcia, 834

S.W.2d 4 (Tex. 1992); State v. Jewett, 500 A.2d 233 (Vt. 1985); Dworkin

v. L.F.P., Inc., 839 P.2d 903 (Wyo. 1992). See generally Robert F.

Williams, The Law of American State Constitutions 144–46 (2009)

[hereinafter Williams]. Dworkin is a particularly striking example

because the Wyoming Supreme Court attached a bibliography of articles

on independent state constitutional development as an appendix to the

opinion. 839 P.2d at 920–22.

In light of the availability of state constitutional claims and the

complete lack of any strategic reason not to pursue them, a number of

state court judicial opinions indicate the failure to bring a state

constitutional claim may amount to malpractice. See State v. Lowry, 667

P.2d 996, 1013 (Or. 1983) (Jones, J., concurring) (“Any defense lawyer

who fails to raise an Oregon Constitution violation and relies solely on

parallel provisions under the federal constitution . . . should be guilty of

legal malpractice.”); Commonwealth v. Kilgore, 719 A.2d 754, 757 (Pa.

Super. Ct. 1998) (finding counsel ineffective for failure to raise state

search and seizure claim); Jewett, 500 A.2d at 235 (noting that legal

argument too often “consists of a litany of federal buzz words

memorialized like baseball cards”). As bluntly stated by Judge Jeffrey S.

Sutton of the United States Court of Appeals for the Sixth Circuit, “no

58

lawyer worth his or her salt can be a good advocate in today’s world

without appreciating the possibility—and value—of raising state and

federal [constitutional] claims in representing a client.” Jeffrey S. Sutton,

Why Teach—and Why Study—State Constitutional Law, 34 Okla. City U.

L. Rev. 165, 178 (2009) [hereinafter Sutton]; see also State Constitutions

in the Federal System at 70 (“Local practitioners have an obligation to

raise the issue that the state court can grant broader protection under

its own constitution[.]”). See generally 1 Friesen § 1.08, at 1–57 to 1–66

(suggesting a manner by which to raise and argue independent state

constitutional grounds).

Yet, as observed in an introduction to a conference on state

constitutional law developments almost thirty years ago, “[o]ld habits die

hard.” A. E. Dick Howard, Introduction: A Frequent Recurrence to

Fundamental Principles, in Developments in State Constitutional Law xi,

xxii (Bradley D. McGraw ed., 1985). According to the 1989 report of the

Advisory Commission on Intergovernmental Relations, “Even among

lawyers, state constitutional law is relatively unknown and little

practiced.” State Constitutions in the Federal System at 2.

In order to help remedy the situation, the Conference of Chief

Justices in 2010 passed a resolution urging all law schools to offer a

course in state constitutional law. Robert F. Williams, Why State

Constitutions Matter, 45 New Eng. L. Rev. 901, 909, 912 (2011)

(reproducing text of resolution as an appendix). The resolution stated,

among other things, that state constitutional “declarations of rights . . .

are often greater than federally guaranteed rights and liberties” and that

“being a competent and effective lawyer requires an understanding of

both the Federal Constitution and state constitutional law.” Id. at app.

59

An important feature of independent state constitutional law is

that it is not “liberal” or “conservative.” 13 Rather, state constitutional law

involves recognition of the independent nature of state constitutions and

the obligation of state courts in our federal system. See Barry Latzer,

Whose Federalism? Or, Why “Conservative” States Should Develop Their

State Constitutional Law, 61 Alb. L. Rev. 1399, 1403–10 (1998). See

generally Stanely Mosk, State Constitutionalism: Both Liberal and

Conservative, 63 Texas L. Rev. 1081 (1985). While labels are illusive—is

our evolving search and seizure jurisprudence, liberal, conservative, or

libertarian?—independent state constitutional analysis can yield

outcomes that might appeal to persons who regard themselves as

politically “conservative.” Certainly the result in Tonn favored the state

over criminal defendants. And, in the wake of the United States

Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, 125

S. Ct. 2655, 162 L. Ed. 2d 439 (2005), the Ohio Supreme Court, on

independent state grounds, provided greater protection to property rights

under the Ohio Constitution than were provided by the United States

Supreme Court. Norwood v. Horney, 853 N.E. 2d 1115, 1123, 1128–42

13The New Judicial Federalism is often associated with a seminal law review

article written by Justice William Brennan in which Justice Brennan urged state courts

to provide more constitutional protections for individuals than was being provided by

the United States Supreme Court. See William J. Brennan, Jr., State Constitutions and

the Protections of Individual Rights, 90 Harv. L. Rev. 489 (1977). As pointed out by

Indiana Chief Justice Randall Shepard, however, scholars and judges were advocating

independent state constitutional development well before Justice Brennan’s argument

appeared. Randall T. Shepard, The Maturing Nature of State Constitution Jurisprudence,

30 Val. U. L. Rev. 421, 423–24 & n.9 (1996) (citing Vern Countryman, Why a State Bill

of Rights? 45 Wash. L. Rev. 454 (1970), Jerome B. Falk, Jr., Foreword: The State

Constitution: A More than “Adequate” Nonfederal Ground, 61 Cal. L. Rev. 273 (1973),

Robert Force, State “Bills of Rights”: A Case of Neglect and the Need for a Renaissance, 3

Val. U. L. Rev. 125 (1969), Project Report: Toward an Activist Role for State Bills of

Rights, 8 Harv. C.R.-C.L. L. Rev. 271 (1973), and Lawrence M. Newman, Note,

Rediscovering the California Declaration of Rights, 28 Hastings L.J. 481 (1974)).

60

(Ohio 2006). Additionally, the New Hampshire Supreme Court found

under its state equal protection clause that the right to enjoy property is

subject to intermediate scrutiny. Cmty. Res. for Justice, Inc. v. City of

Manchester, 917 A.2d 707, 717–21 (N.H. 2007); see also Timothy

Sandefur, Don’t Mess with Property Rights in Texas: How the State

Constitution Protects Property Owners in the Wake of Kelo, 41 Real Prop.

Prob. & Tr. J. 227, 228–30, 252 (2007) (arguing the Texas Constitution’s

public use clause provides more protection to property owners than the

United States Constitution).

The rebirth of state constitutional law has advanced constitutional

dialogue both horizontally and vertically within the federal system.

Consistent with Justice Louis Brandeis’s famous declaration that a state

in the federalist system amounts to a “laboratory” of democracy, see New

State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386–87, 76

L. Ed. 747, 771 (1932) (Brandeis, J., dissenting), the vibrancy of state

constitutional law has been a salutary development in promoting

horizontal federalism, or dialogue among the states. See Robert F.

Williams, State Constitutional Methodology in Search and Seizure Cases,

77 Miss. L.J. 225, 253 (2007) [hereinafter State Constitutional

Methodology]; see also Ronald K.L. Collins, Reliance on State

Constitutions: Some Random Thoughts, 54 Miss. L.J. 371, 409 (1984)

[hereinafter Collins]. Just as a state court exploring products liability in

the 1950s would certainly consult Justice Roger Traynor’s concurring

opinion in Escola v. Coca Cola Bottling Co., 150 P.2d 436, 461 (Cal. 1944)

(Traynor, J., concurring), state supreme courts consult the cases of other

states in developing their own state constitutional law. Collins, 54 Miss.

L.J. at 408. For example, in Tonn, we canvassed academic authorities,

dissenting federal authorities, and the law of other state supreme courts.

61

See 195 Iowa at 103–09, 191 N.W. at 534–36. Similarly, in Cline, Ochoa,

and Pals, we canvassed cases from other states to determine the best

result on search and seizure questions under the Iowa Constitution.

Pals, 805 N.W.2d at 775–77, 779; Ochoa, 792 N.W.2d at 283–84; Cline,

617 N.W.2d at 289–90. With computer-based legal research, state

supreme court justices and their clerks have ready access to recent state

constitutional analyses in other states that can serve as a springboard

for analysis. The cross-fertilization opportunities in the development of

state constitutional law has never been greater. See State Constitutional

Methodology, 77 Miss. L.J. at 253 (stating that “state courts are remiss”

if they do not use modern research methods to look at decisions of other

state courts).

The growth of independent state constitutional law also promotes

vertical federalism, or a constitutional dialogue between state and federal

courts regarding the proper interpretation of an open-textured

constitutional provision. See James A. Gardner, Interpreting State

Constitutions: A Jurisprudence of Function in a Federal System 100 (2005)

[hereinafter Gardner]. 14 In this regard, commentators have cited our

century old case of State v. Sheridan, 121 Iowa 164, 96 N.W. 730 (1903),

as a precursor to the adoption of the exclusionary rule by the United

States Supreme Court in Weeks. See, e.g., Joseph Blocker, Reverse

14According to Professor Gardner, state court rejection of United States Supreme

Court decisions under state constitutions can ultimately influence opinion on the

correctness of the Supreme Court decision, contribute to a state-level nationwide

consensus, sometimes considered by the United States Supreme Court, provide a check

on national power by prohibiting state and local governments from exercising power

granted to them under the United States Constitution, and curb harm to civil liberties

brought about by narrow United States Supreme Court rulings. This section of

Gardner’s book is a substantial reproduction of an article he published two years earlier

in the Georgetown Law Journal. See James A. Gardner, State Constitutional Rights as

Resistance to National Power, 91 Geo. L.J. 1003, 1032–54 (2003).

62

Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 372

n.255 (2011); Collins, 54 Miss. L.J. at 415; see also G. Alan Tarr,

Understanding State Constitutions 163 n.119 (1998) [hereinafter Tarr].

When the United States Supreme Court incorporated the exclusionary

rule against the states in Mapp, it noted a majority of states had already

adopted it. 367 U.S. at 651, 81 S. Ct. at 1689, 6 L. Ed. 2d at 1087–88.

State supreme court decisions have also impacted the permissible

scope of warrantless searches incident to lawful arrests in the

automobile context. In New York v. Belton, 453 U.S. 454, 460, 101 S. Ct.

2860, 2864, 69 L. Ed. 2d 768, 775 (1981), the United States Supreme

Court held law enforcement officers could conduct thorough vehicle

searches, incident to arrest, including inside closed containers. In the

aftermath, a number of state supreme courts rejected Belton’s reasoning

when interpreting parallel state constitutional provisions. See, e.g., State

v. Hernandez, 410 So. 2d 1381, 1384–85 & n.2 (La. 1982); State v.

Harnisch, 954 P.2d 1180, 1182–83 (Nev. 1998); State v. Pierce, 642 A.2d

947, 959–60 (N.J. 1994); State v. Rowell, 188 P.3d 95, 101 (N.M. 2008);

People v. Blasich, 541 N.E.2d 40, 44–45 (N.Y. 1989); Commonwealth v.

White, 669 A.2d 896, 902 (Pa. 1992); State v. Bauder, 924 A.2d 38, 46–

47 (Vt. 2007); State v. Stroud, 720 P.2d 436, 440–41 (Wash. 1986)

(plurality opinion), overruled on other grounds by State v. Valdez, 224

P.3d 751, 775–78 (Wash. 2009); Vasquez v. State, 990 P.2d 476, 488–89

(Wyo. 1999); see also Commonwealth v. Toole, 448 N.E.2d 1264, 1266–68

(Mass. 1983) (rejecting Belton based on state statute). These courts

demonstrated respect for the United States Supreme Court, but

nonetheless strongly disagreed with its reasoning. Ultimately, the United

States Supreme Court abandoned much of Belton, citing among other

things the developments in the states. See Arizona v. Gant, 556 U.S.

63

322, 338, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485, 493 (2009). See

generally State v. Vance, 790 N.W.2d 775, 786–90 (Iowa 2010).

State high court rulings interpreting state constitutions have paved

the way for the United States Supreme Court in a number of other areas.

See generally Joseph Blocher, Reverse Incorporation of State

Constitutional Law, 84 S. Cal. L. Rev. 323, 371–85 (2011) (discussing the

influence of state constitutional law in criminal procedure, due process,

and Eight Amendment cases). For instance, the California Supreme

Court ruling regarding miscegenation in Perez v. Lippold, 198 P.2d 17

(Cal. 1948), was a precursor to the United States Supreme Court

decision in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d

1010 (1967). William B. Rubenstein, The Myth of Superiority, 16 Const.

Comment. 599, 622 n.91 (1999). Similarly, the decision of the Georgia

Supreme Court under the Georgia Constitution to prohibit the

criminalization of same-sex sodomy in Powell v. State, 510 S.E.2d 18

(Ga. 1998), contributed to the overruling of Bowers v. Hardwick, 478 U.S.

186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Lawrence v. Texas, 539

U.S. 558, 576, 123 S. Ct. 2472, 2483, 156 L. Ed. 2d 508, 524 (2003)

(specifically citing Powell as an example of a state court’s decision to

depart from Bowers under its state constitution). 15 See generally

Gardner at 100–03 (providing overview of the Georgia decision in Powell

and subsequent reaction). Further, the California Supreme Court in

People v. Wheeler, 583 P.2d 748, 761–62 (Cal. 1978), held the use of a

preemptory challenge to remove a juror based on the juror’s membership

in a particular racial, religious, or ethnic group violates the California

15Prior to Bowers v. Hardwick, we held that a criminal statute prohibiting

opposite-sex sodomy in private violated the federal right of privacy. See State v. Pilcher,

242 N.W.2d 348, 359 (Iowa 1976).

64

Constitution. This decision predated the same conclusion by the United

States Supreme Court under the United States Constitution in Batson v.

Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82–

83 (1986).

The dialogic nature of state constitutional law—both vertical and

horizontal—is highly desirable and should cause celebration, not

handwringing. See Jason Mazzone, The Bill of Rights in the Early State

Courts, 92 Minn. L. Rev. 1, 6 (2007) [hereinafter Mazzone] (stating that

“[a]llowing state courts to adopt more expansive readings of

constitutional rights generates information about how rights might be

structured” and that “[s]uch experimentation produces systemic

benefits”); Lawrence Gene Sager, Fair Measure: The Legal Status of

Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1251–52

(1978) (noting many reforms of the Warren court were already well-

established matters of state law in a number of states). The interactions

fostered by the rebirth of independent state constitutional law

demonstrate that the system of dual sovereignty is now functioning more

closely to the federalist ideal.

B. Independent Iowa State Constitutional Law After

Incorporation. After incorporation, the first requirement, of course, was

to ensure that Iowa law provided the floor of protection offered by the

United States Constitution in criminal procedure, including the Fourth

Amendment. Immediately following incorporation, we primarily adjusted

to the incorporation revolution under the Warren Court and our caselaw

under the Iowa Constitution tended to run parallel to the evolving federal

caselaw. See Ochoa, 792 N.W.2d at 265–66 (discussing older Iowa

cases).

65

As the United States Supreme Court began to scale back on

substantive holdings under the Bill of Rights of the United States

Constitution, we on a number of occasions took a different path under

our state constitution. We have applied independent Iowa state

constitutional law in the areas of equal protection, see, e.g., Varnum v.

Brien, 763 N.W.2d 862, 896 (Iowa 2009); Racing Ass’n of Cent. Iowa v.

Fitzgerald (RACI), 675 N.W.2d 1, 7 (Iowa 2004); Bierkamp v. Rogers, 293

N.W.2d 577, 579 (Iowa 1980), cruel and unusual punishment, see State

v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009), due process, see State v.

Cox, 781 N.W.2d 757, 761 (2010); Callender v. Skiles, 591 N.W.2d 182,

187, 189 (Iowa 1999), and search and seizure, see Pals, 805 N.W.2d at

782; Ochoa, 792 N.W.2d at 267; State v. Tague, 676 N.W.2d 197, 204,

206 (Iowa 2004); Cline, 617 N.W.2d at 284–85; State v. Cullison, 173

N.W.2d 533, 538–39 (Iowa 1970).

Of course, we are free to follow persuasive United States Supreme

Court precedent in the interpretation of state constitutional provisions.

For example, in State v. Breuer, 808 N.W.2d 195, 201–03 (Iowa 2012), we

followed persuasive federal precedent and declined to require that a

search warrant be physically present in a hospital room before police

may obtain a blood draw from a person suspected of driving while

intoxicated. Even where we have declined to take a different path under

the Iowa Constitution, however, we have respectively emphasized that we

jealously guard our right to do so. See, e.g., State v. Becker, 818 N.W.2d

135, 149 (Iowa 2012); State v. Kurth, 813 N.W.2d 270, 283 (Iowa 2012)

(Appel, J., concurring specially); Hensler v. City of Davenport, 790 N.W.2d

569, 579 n.1 (Iowa 2010); Zaber v. City of Dubuque, 789 N.W.2d 634, 654

(Iowa 2010); Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 480 (Iowa 2010);

State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008); In re Det. of

66

Hennings, 744 N.W.2d 333, 337 (Iowa 2008); State v. Hoskins, 711

N.W.2d 720, 725 (Iowa 2006); State v. Beckett, 532 N.W.2d 751, 755

(1995); State v. Groff, 323 N.W.2d 204, 207–08 (Iowa 1982); State v.

Olsen, 293 N.W.2d 216, 219–20 (Iowa 1980).

One of the questions we have faced in developing our independent

state constitutional law was whether an opinion of the United States

Supreme Court under the provision of the United States Constitution

was entitled to a “presumption of correctness” in the interpretation of a

parallel or similar provision of the Iowa Constitution. In Ochoa, we

declared, among other things, that there is no presumption that the

federal law is the correct approach. 792 N.W.2d at 267. We came to the

same conclusion as Oregon Supreme Court Justice Hans Linde, who

three decades ago described a state court’s blind adoption of federal

constitutional doctrine when interpreting its state constitution as a “non

sequitur that the United States Supreme Court’s decisions under such a

text not only deserve respect but presumptively fix its correct meaning

also in state constitutions.” State v. Kennedy, 666 P.2d 1316, 1322 (Or.

1983). Our view also aligned with leading commentators. As noted by

Professor Robert F. Williams, the premise that United States Supreme

Court interpretations of the Bill for Rights of the United States

Constitution are presumptively correct for interpreting analogous

provisions of state constitutions is “simply wrong.” Williams at 135; see

also Dorothy T. Beasley, The Georgia Bill Of Rights: Dead or Alive, 34

Emory L.J. 343, 414 (1985) (“The virtual piggybacking of the state clause

onto the federal clause renders the former a parasite instead of an

independent source of authority.”). According to Professor Williams, a

state court interpreting its state constitution should give less weight to

United States Supreme Court decisions than the decisions of other states

67

interpreting similar provisions because “federalism and other

institutional concerns, either explicitly or implicitly, pervade Supreme

Court decisions declining to recognize rights against states.” Williams at

137. Williams accordingly discounts these decisions because of the

possibility of underenforcement of the Bill of Rights of the United States

Constitution. Id. Otherwise, as indicated by Justice David Souter, then

of the New Hampshire Supreme Court, state courts would be reduced to

“a mere row of shadows.” State v. Bradberry, 522 A.2d 1380, 1389 (N.H.

1986) (Souter, J., concurring specially).

To date, we have yet to adopt the primacy approach to state

constitutional law. Under the primacy approach, a state supreme court

addresses state constitutional issues before moving to issues under the

Federal Constitution. See, e.g., State v. Cadman, 476 A.2d 1148, 1150

(Me. 1984); State v. Weeks, 635 A.2d 439, 445–46 (N.H. 1993), abrogated

on other grounds by State v. Knickerbocker, 880 A.2d 419, 423 (N.H.

2005); Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981). 16 The primacy

approach has the desirable feature of avoiding unnecessary federal

constitutional adjudications and in obtaining finality. Jerome B. Falk,

Jr., Foreword: The State Constitution: A More than “Adequate” Nonfederal

Ground, 61 Cal. L. Rev. 273, 286 (1973); see also State Constitutions in

the Federal System at 70 (characterizing primacy approach as “useful”

because it avoids unnecessary federal adjudications, allows state courts

to decide questions of state law, takes pressure off the United States

Supreme Court, promotes consideration of the character of a state, and

promotes state experimentation). Though only adopted by a few courts,

16Theleading advocate of this approach was Justice Hans Linde of the Oregon

Supreme Court. See Hans A. Linde, Without “Due Process”: Unconstitutional Law in

Oregon, 49 Or. L. Rev. 125, 133–35 (1970) [hereinafter Linde].

68

and then perhaps honored in the breach more than followed, 17 the

primacy approach has had the support of Justice Linde 18 as well as

United States Supreme Court Justice John Paul Stevens. 19 As noted by

Justice Stevens:

The emerging preference for state constitutional bases of

decision in lieu of federal ones is, in my view, the analytic

approach best suited to facilitating the independent role of

state constitutions and state courts in our federal system.

Delaware v. Van Arsdall, 475 U.S. 673, 705, 106 S. Ct. 1431, 1448–49,

89 L. Ed. 2d 674, 699 (1986) (Stevens, J., dissenting).

Instead, we have adopted a more measured approach under which

we are free to consider either state or federal constitutional provisions

first. For instance, in Cox and Tague, we elected to address the state

constitutional issues involving due process and search and seizure first,

leaving the federal constitutional issues undecided. Cox, 781 N.W.2d at

772; Tague, 676 N.W.2d at 206. On the other hand, in Mitchell County v.

Zimmerman, 810 N.W.2d 1, 18 (Iowa 2012), and Kurth, 813 N.W.2d at

281, we addressed federal constitutional issues in a cases involving

religious liberty and search and seizure, respectively, and reserved state

constitutional questions. By exercising our discretion regarding which

17See John W. Shaw, Comment, Principled Interpretations of State Constitutional

Law—Why Don’t the “Primacy” States Practice What They Preach?, 54 U. Pitt. L. Rev.

1019, 1034–49 (1993) (noting, following analysis of Oregon cases, that the Oregon

Supreme Court often departs from the primacy approach and offering explanations).

18See Linde, 49 Or. L. Rev. at 135.

19See Brigham City v. Stuart, 547 U.S. 398, 407–08, 126 S. Ct. 1943, 1950, 164

L. Ed. 2d 650, 660 (2006) (Stevens, J., concurring); Delaware v. Van Arsdall, 475 U.S.

673, 705, 106 S. Ct. 1431, 1448–49, 89 L. Ed. 2d 674, 699 (1986) (Stevens, J.,

dissenting); Massachusetts v. Upton, 466 U.S. 727, 736–37, 104 S. Ct. 2085, 2089–90

80 L. Ed. 2d 721, 729–30 (1984) (Stevens, J., concurring).

69

claim to address first, we can choose the clearest path to the resolution

of a case.

Our approach to independent state constitutional law in the search

and seizure area has been cautious. We have required that state

constitutional grounds must be properly before the court, sometimes

strictly enforcing our preservation rules. For example, in State v. Lowe,

812 N.W.2d 554, 577 (Iowa 2012), the majority of this court declined to

consider whether we should adopt a Johnson v. Zerbst-type knowing and

voluntary requirement for a consent search under article I, section 8 of

the Iowa Constitution because the parties did not specifically raise the

argument. When a party argues from federal caselaw but does not assert

a different substantive standard under the Iowa Constitution, we

ordinarily decline to develop a new standard, but reserve the power to

apply the federal standard in a manner different from federal caselaw.

See, e.g., Bruegger, 773 N.W.2d at 883; RACI, 675 N.W.2d at 6–7. The

distinction between a standard and its application is especially important

where the legal principles have high degrees of generality, such as

“totality of circumstances” tests, tests based upon “gross

proportionality,” and tests based upon “reasonableness.” See Williams at

169–71; Jeffrey Sutton, What Does—and Does Not—Ail State

Constitutional Law, 59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter

Sutton].

In part because of our relatively stringent preservation rules, the

Iowa caselaw in the area of search and seizure involving independent

state grounds has been modest. In Cline, we joined a minority of state

jurisdictions rejecting the “good faith” exception to the exclusionary rule

announced by the United States Supreme Court in Leon. Cline, 617

N.W.2d at 293. In Tague, we held that an isolated incident of crossing

70

the centerline did not provide probable cause or reasonable suspicion for

a traffic stop under article I, section 8 of the Iowa Constitution. 676

N.W.2d at 206. We have also rejected the sweeping notion of Samson v.

California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), that

general searches of parolees may be conducted without any showing of

particularity. See Ochoa, 792 N.W.2d at 291. We have insisted on a

more realistic analysis of what amounts to “voluntary consent” in the

context of automobile searches. Pals, 805 N.W.2d 782–83.

Each of our independent search and seizure cases has been

narrowly crafted, reflecting a cautious approach to the development of

our state constitutional law. Our independent search and seizure cases

emphasize the traditional requirement of particularity to cabin

government discretion in the search and seizure context and engage in

realistic assessment of the voluntariness of consent. These two themes

merge to remind law enforcement of the wisdom in the jurisprudence of

United States Supreme Court Justice Potter Stewart: when in doubt, get

a warrant. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408,

2412, 57 L. Ed. 2d 290, 298–99 (1978) (reminding us that “it is a

cardinal principal that ‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions’ ” (quoting Katz v. United

States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585

(1967) (footnotes omitted))). In short, we have sought to develop an Iowa

search and seizure jurisprudence that prevents arbitrary exercise of

government power in a realistic way in today’s world.

C. Challenges to Independent State Constitutional Law by

Constitutional Nationalists.

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1. Introduction. During the past forty years, “constitutional

nationalists” 20 have challenged the development of independent state

constitutional law. Writing in 1998, a leading commentator declared that

the concerns of constitutional nationalists had “largely been put to rest.”

Tarr at 169. While the paths pursued below have been well traveled by

courts and commentators, some of the objections of the constitutional

nationalists to a robust federalist system with vibrant independent state

constitutional law should be put to rest.

2. Parallel language. Constitutional nationalists sometimes

suggest that because the Fourth Amendment text and the text of the

search and seizure provisions of state constitutions, like article I, section

8 of the Iowa Constitution, are nearly identical, state courts must follow

the interpretive decisions of the United States Supreme Court. We have

previously addressed and rejected this argument. See, e.g., Ochoa, 792

N.W.2d at 267; Tonn, 195 Iowa at 104–07, 191 N.W. at 535–36.

The Tonn–Ochoa notion that parallel language in a state

constitution is not tied to United States Supreme Court interpretations

was recently powerfully endorsed by Judge Sutton:

There is no reason to think, as an interpretive matter, that

constitutional guarantees of independent sovereigns, even

guarantees with the same or similar words, must be

construed the same. Still less is there reason to think that a

highly generalized guarantee, such as prohibition on

“unreasonable” searches, would have just one meaning for a

range of differently situated sovereigns.

Sutton, 59 U. Kan. L. Rev. at 707. Many state courts reflect Judge

Sutton’s approach. See, e.g., State v. Gerschoffer, 763 N.E.2d 960, 965

20“Constitutional nationalists” are those who object to citation to foreign law.

Daniel A. Farber, The Supreme Court, the Law of Nations, and Citations of Foreign Law:

The Lessons of History, 95 Cal. L. Rev. 1335, 1342 (2007).

72

(Ind. 2002) (noting that Indiana Constitution “has unique vitality, even

where its words parallel federal language”); People v. Barber, 46 N.E.2d

329, 331 (N.Y. 1943) (noting that New York Court of Appeals is “bound to

exercise its independent judgment and is not bound by a decision of the

Supreme Court of the United States limiting the scope of similar

guarantees in the Constitution of the United States”); State v. Arrington,

319 S.E.2d 254, 260 (N.C. 1984) (“In construing provisions of the

Constitution of North Carolina, this Court is not bound by opinions of

the Supreme Court of the United States construing even identical

provisions in the Constitution of the United States.”); Commonwealth v.

Edmunds, 586 A.2d 887, 895–96 (Pa. 1991) (“Although the wording of the

Pennsylvania Constitution is similar in language to the Fourth

Amendment of the United States Constitution, we are not bound to

interpret the two provisions as if they were mirror images, even where the

text is similar or identical.”); O’Boyle v. State, 117 P.3d 401, 408 (Wyo.

2005) (search and seizure provision of Wyoming Constitution, which

parallels the Fourth Amendment, provides “a separate and independent

source of protection of the rights of Wyoming citizens”).

The notion that state supreme courts should simply mirror the

interpretations of the United States Supreme Court in interpreting

parallel provisions of state constitutions is a flawed method of judging.

This technique amounts to what Professor Adrian Vermeule refers to as

“a precommitment device” that prevents a state supreme court from

considering each case based on an independent examination of facts and

law. See Adrian Vermeule, The Judicial Power in the State (and Federal)

Courts, 2000 Sup. Ct. Rev. 357, 366 (2000); see also Williams at 226.

As a result, lockstepping state law to federal precedents is not a

humble or minimalist approach, but is an aggressive and maximalist

73

approach to the law. Williams at 224–29. 21 Through the imposition of

lockstep, constitutional nationalists seek not only to provide the rule of

decision in a particular case, but in literally hundreds of cases in one

master stroke. Lockstepping is the antithesis of the ordinary judicial

method, which grinds more slowly and finely, decides what needs to be

decided and no more, reserving future legal questions for the next case.

As noted by two scholars, “Judicial federalism offers the opportunity to

weigh alternatives over time, to keep an open mind, to reflect, and to

develop visions of the good, without rushing headlong into the

straitjacket of national policy.” Michael E. Solimine & James L. Walker,

Respecting State Courts: The Inevitability of Judicial Federalism 138

(1999) [hereinafter Solimine & Walker].

3. Uniformity. The development of independent state

constitutional law is sometimes challenged on the pragmatic ground that

it tends to defeat the development of uniform standards that apply under

both the Federal and State Constitutions. The decision against

uniformity, however, was made by the framers of the United States

Constitution and the Iowa Constitution in favor of dual sovereignty. We

have no authority to alter it. See, e.g., State v. Smith, 814 P.2d 652, 661

(Wash. 1991) (Utter, J., concurring) (noting that lockstepping would

require rewrite of state constitution). We cannot add a proviso to the

Tenth Amendment that declares, “State courts should defer to federal

court interpretations of Bill of Rights provisions,” nor can we add a

provision to article I, section 8 of the Iowa Constitution declaring, in the

21This section of Williams’s book consists of a substantial reproduction of an

article he published in the William and Mary Law Review. See Robert F. Williams, State

Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or

Prospective Lockstepping, 46 Wm. & Mary L. Rev. 1499, 1520–27 (2005).

74

interest of uniformity, that we will decline to exercise our independent

authority to interpret the state constitution. 22 Demands for a uniform

approach undermine the “double security” that Madison proclaimed the

states provided in the federal framework. See Duncan, 391 U.S. at 173,

88 S. Ct. at 1461, 20 L. Ed. 2d at 509–10 (Harlan, J., dissenting)

(federalism protects “the security of liberty in America . . . [through] the

dispersion of governmental power across a federal system”); see also

State v. von Bulow, 475 A.2d 995, 1019 (R.I. 1984) (finding search

without a warrant unlawful and commenting that state and federal

constitutions provide a “double barrelled source of protection” (citation

and internal quotation marks omitted)); 1 Friesen § 1.03[4][a], at 1–14 to

1–15 (noting that independent state constitutional analyses lead to “a net

gain in liberty,” that uniformity deprives states of sovereignty and local

control, and that uniformity is illusory because it is impossible for the

United States Supreme Court to review every case applying federal

constitutional law); Stanley G. Feldman & David L. Abney, The Double

Security of Federalism: Protecting Individual Liberty Under the Arizona

Constitution, 20 Ariz. St. L.J. 115, 117 (1988) (“If we choose to follow

federal precedent to bolster nationwide conformity, we destroy the

‘double security’ designed to protect our citizens.”); Mazzone, 92 Minn. L.

Rev. at 5–6, 74 (arguing consolidation of constitutional law is

“inconsistent with federalism” because “federalism works best when

different political unitys are able to try different approaches and solve

problems in different ways”).

22See Tarr at 181 (stating that in a system of dual sovereignty, state courts

cannot legitimately delegate responsibility to interpret state constitutional provisions to

the United States Supreme Court).

75

Indeed, the United States Supreme Court has held that the United

States Constitution prohibits the federal government from

commandeering a state legislature or a state executive and making them

foot soldiers in the creation and enforcement of federal law. See, e.g.,

Printz v. United States, 521 U.S. 898, 935, 117 S. Ct. 2365, 2384, 138 L.

Ed. 2d 914, 944 (1997) (invalidating provisions of Brady Handgun

Violence Prevention Act because United States Constitution prohibits

requiring state executive officials from enforcing federal law); New York v.

United States, 505 U.S. 144, 180–83, 112 S. Ct. 2408, 2430–32, 120 L.

Ed. 2d 120, 153–55 (1992) (invalidating environmental law provision that

commandeered state legislature); see also Mazzone, 92 Minn. L. Rev. at

75–76 (arguing consolidation of constitutional law fails to respect the

importance placed upon state courts by the United States Constitution).

Similarly, state courts cannot become stone breakers pursuant to some

kind of self-imposed corvée duty that requires federal precedent to be

used as hammers to break state constitutional rock.

Further, even on a pragmatic level, the case for uniformity is

unpersuasive. First, it would defeat the positive features of the federalist

system which was so important to the founding generation. As one

commentator has noted:

Rules that govern relations between police officers and local

citizens, or between cities and school boards and their

employees, are not necessarily better decided, or more

efficiently decided, by nine judicial appointees with a

national responsibility and allegiance. Insisting on a

national, uniform legal culture ignores the reality and

richness of state differences.

1 Friesen § 1.03[4][a], at 1–14 to 1–15 (footnote omitted).

The position of state supreme court justices closer to daily law

enforcement activities has not been lost on the United States Supreme

76

Court. For instance, Justice Ginsberg has noted that state courts have a

“unique vantage point” in automobile stop cases. See Ohio v. Robinette,

519 U.S. 33, 40, 117 S. Ct. 417, 422, 136 L. Ed. 2d 347, 355 (1996)

(Ginsburg, J., concurring).

Moreover, it is clear that uniformity will not be achieved by

adopting United States Supreme Court precedents under the state

constitution. See 1 Friesen § 1.03[4][a], at 1–15. The Supreme Court is

capable of handling only a few search and seizure cases each year. As a

result, there are many issues dividing the federal circuits that remain

undecided. A recent survey of search and seizure precedents in the

federal circuits reveal over three dozen current splits that have not been

mediated by the United States Supreme Court. See Wayne A. Logan,

Constitutional Cacophony: Federal Circuit Splits and the Fourth

Amendment, 65 Vand. L. Rev. 1137, 1147–60 (2012); see also John

Harrison, Federal Appellate Jurisdiction Over Questions of State Law in

State Courts, 7 Green Bag 2d 353, 356 (2004) (noting that “[f]ederal law

is notoriously non-uniform among the different circuits”); Mazzone, 92

Minn. L. Rev. at 74–75 (warning not to overvalue uniformity because “our

legal system tolerates a good deal of inconsistency and nonuniform

outcomes”); Michael E. Solimine, The Future of Parity, 46 Wm. & Mary L.

Rev. 1457, 1483 (2004) (explaining that “[e]ven narrowly focused federal

rights often have nonuniform application”).

In addition, past cases demonstrate that it is difficult to determine

the methodology that the United States Supreme Court will apply to

determine a search and seizure issue. In recent years, the Supreme

Court has applied at least five different analytical models, based upon

the warrant requirement, individualized suspicion, case-by-case analysis,

a balancing test, and an approach relying on the common law plus

77

balancing to resolve search and seizure issues. See Thomas K. Clancy,

The Fourth Amendment: Its History and Interpretation 470–531 (2008)

[hereinafter Clancy]. In any given case, it is impossible to predict which

model will apply.

As a result, even if uniformity were the goal, a policy of blind

adoptionism may cause more harm than it is worth. As noted recently

by the Tennessee Supreme Court, “[state] constitutional standards are

not destined to walk in lock step with the uncertain and fluctuating

federal standards and do not relegate [state] citizens to the lowest levels

of constitutional protection, those guaranteed by the national

constitution.” Planned Parenthood of Middle Tenn. v. Sundquist, 38

S.W.3d 1, 14–15 (Tenn. 2000) (citation and internal quotation marks

omitted).

Another pragmatic ground offered in support of uniformity is that

law enforcement will be too confused by independent state constitutional

law. This argument is flawed. As has been repeatedly pointed out, there

are not two standards for state law enforcement officials when a state

supreme court develops its independent state law in criminal procedure.

Law enforcement officials need not learn two different standards; they

need only learn one, namely, whatever standard is most restrictive. See

1 Friesen § 1.03[4][b], at 1–15 to 1–16; Tarr at 181 n.32. Given the

professionalism and training of Iowa law enforcement, we should not sell

their abilities so short. Iowa law enforcement is not inferior in ability to

its counterparts in New York, New Jersey, Wisconsin, Oregon, Georgia,

Minnesota, Indiana, and the many other states that have embraced

robust independent state constitutional law.

Finally, uniformity converts a state supreme court into a legal

chameleon that changes color with the latest changes in the

78

jurisprudence of the United States Supreme Court. Do we retire the

writings of Justices Brandeis, Holmes, Cardozo, Stone, and Jackson

because their views are no longer cited by current majorities of the

United States Supreme Court? And what about the Iowa legal tradition

and culture as reflected in In re Ralph and its progeny? As former Chief

Justice of Indiana Randall Shepard noted:

[W]hat respectable alternative is there to independent state

constitutional jurisprudence? Is it a nation where civil

liberties at all levels of activity depend solely on whether the

left, the center, or the right of the U.S. Supreme Court is

ascendant at the moment? Is it a country where state courts

hearing ninety percent of the litigation resolve the most

important cases without regard to their own history or

precedent? Surely not.

Randall T. Shepard, The Maturing Nature of State Constitution

Jurisprudence, 30 Val. U. L. Rev. 421, 456 (1996). Under the uniformity

theory, the Io

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