State of Iowa v. Scottize Danyelle Brown

IN THE SUPREME COURT OF IOWA

No. 17–0367

Filed June 28, 2019

STATE OF IOWA,

Appellee,

vs.

SCOTTIZE DANYELLE BROWN,

Appellant.

Appeal from the Iowa District Court for Black Hawk County,

Nathan A. Callahan, District Associate Judge.

The defendant challenges her conviction for operating a motor

vehicle while intoxicated under Iowa Code section 321J.2 (2017), arguing

she was subjected to an impermissible pretextual stop. AFFIRMED.

Mark C. Smith (until withdrawal), State Appellate Defender, and

Theresa R. Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser (until withdrawal),

Kevin Cmelik, and Israel Kodiaga Assistant Attorneys General, Brian

Williams, County Attorney, and Charity Sullivan, Assistant County

Attorney, for appellee.

Rita Bettis of ACLU of Iowa Foundation, Des Moines; Russell E.

Lovell II, Des Moines; David S. Walker, Windsor Heights; and Andrew B.

Duffelmeyer (until withdrawal) of Glazebrook & Hurd, LLP, Des Moines, for

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Amici Curiae American Civil Liberties Union of Iowa, the NAACP, League

of United Latin American Citizens of Iowa, and 1000 Kids for Iowa.

Alan R. Ostergren, Muscatine, for amicus curiae Iowa County

Attorneys Association.

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CHRISTENSEN, Justice.

This case requires us to decide whether a motorist who breaks a

traffic law may lawfully be stopped if the officer was motivated by

investigative reasons for the stop. Around 12:25 a.m., a police officer

observed the defendant making an improper turn and decided to follow the

defendant. At a stoplight, the officer noticed the defendant’s vehicle had

an improperly functioning license plate light and ran the vehicle

information for the vehicle’s registered owner—who was not the defendant.

The vehicle information revealed the registered owner’s affiliation to gang

activity. Subsequently, the officer pulled the defendant over, which led to

his discovery of the defendant’s open beer container in the center

cupholder.

The State charged the defendant with operating while intoxicated in

violation of Iowa Code section 321J.2 (2016). The defendant moved to

suppress all evidence obtained after the stop, arguing the officer conducted

it in violation of the Fourth Amendment of the United States Constitution

and article I, section 8 of the Iowa Constitution because the officer’s

reasons for the stop were not the traffic violations themselves. The district

court denied the motion to suppress and later convicted the defendant

following a bench trial on the minutes. Consistent with precedent in Iowa

and the vast bulk of authority elsewhere, we affirm the district court

judgment because the subjective motivations of an individual officer for

making a traffic stop are irrelevant as long as the officer has objectively

reasonable cause to believe the motorist violated a traffic law.

I. Background Facts and Proceedings.

On October 17, 2015, Officer Justin Brandt of the Waterloo Police

Department observed a black Lincoln Navigator at around 12:25 a.m. in

the City of Waterloo. Officer Brandt observed the driver accelerating at a

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yellow light and passing to the left of a moving vehicle before veering across

the centerline. The traffic light changed from yellow to red as the Lincoln

Navigator passed through the intersection. Officer Brandt followed the

driver to another intersection, where he also observed the driver’s license

plate light was not properly functioning. At the red light, he ran the vehicle

information for the vehicle’s registered owner—who was not the driver—

and discovered the registered owner’s association with local gang activity.

After realizing the registered vehicle owner’s gang affiliation, Officer

Brandt decided to stop the vehicle. He activated his emergency lights, but

the driver continued. The driver eventually stopped the vehicle after

Officer Brandt activated his audible siren. Officer Brandt approached the

vehicle and immediately smelled an odor of alcohol coming from the driver;

he also observed an open can of beer in the center cupholder. The driver

denied ownership of the open container but admitted to drinking prior to

driving. Officer Brandt obtained the driver’s name and date of birth

because the driver did not have a license with her. The driver was

identified as Scottize Brown. Officer Brandt determined Brown was driving

with a suspended license and transported her to the police station, where

she failed several field sobriety tests and refused to submit to a breath test.

Brown was charged with a second offense of operating a motor

vehicle while intoxicated, an aggravated misdemeanor, in violation of Iowa

Code section 321J.2. She filed a motion to suppress on January 15, 2016,

claiming she was unlawfully subjected to a pretextual stop in violation of

both article I, section 8 of the Iowa Constitution and the Fourth

Amendment of the United States Constitution. The district court held a

hearing on the motion on February 3, and it denied Brown’s motion on

February 16, explaining, “Since there were traffic violations that were

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objectively observed by Officer Brandt, any subjective reasons that may

have gone into his decision to stop the vehicle do not matter.”

Brown subsequently agreed to a trial on the minutes, and the

district court found her guilty on June 21. She was sentenced to

incarceration in Black Hawk County jail, “351 days suspended, 14 days

imposed,” and to probation for one to two years. The district court also

ordered Brown to pay a $1875 fine with surcharge, a $10 DARE surcharge,

court costs, and attorney fees. Brown appealed on March 7, 2017,

requesting that we vacate her conviction and sentence and remand her

case for dismissal because she was subjected to an impermissible

pretextual stop. We retained Brown’s appeal.

II. Standard of Review.

“When a defendant challenges a district court’s denial of a motion to

suppress based upon the deprivation of a state or federal constitutional

right, our standard of review is de novo.” State v. Brown, 890 N.W.2d 315,

321 (Iowa 2017). We examine the entire record and “make an independent

evaluation of the totality of the circumstances.” State v. Meyer, 543

N.W.2d 876, 877 (Iowa 1996), abrogated in part on other grounds by

Knowles v. Iowa, 525 U.S. 113, 115, 118–19, 119 S. Ct. 484, 487, 488

(1998). In doing so, we evaluate each case “in light of its unique

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

State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)).

Ineffective-assistance-of-counsel claims are based in the Sixth

Amendment of the United States Constitution and article I, section 10 of

the Iowa Constitution. Strickland v. Washington, 466 U.S. 668, 684–86,

104 S. Ct. 2052, 2063–64 (1984); State v. Schlitter, 881 N.W.2d. 380, 388

(Iowa 2016). We normally preserve ineffective-assistance-of-counsel

claims for postconviction-relief proceedings. State v. Harrison, 914 N.W.2d

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178, 206 (Iowa 2018). But, “we will address such claims on direct appeal

when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d

20, 22 (Iowa 2005). We review ineffective-assistance-of-counsel claims de

novo. Schlitter, 881 N.W.2d at 388.

III. Analysis.

The United States Supreme Court has established an objective test

to evaluate the reasonableness of a traffic stop under the Fourth

Amendment of the United States Constitution. In prior cases, we have

applied this objective test when evaluating whether law enforcement

violated a defendant’s Fourth Amendment rights by making a pretextual

traffic stop. See State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996); see

also State v. Cline, 617 N.W.2d 277, 280–81 (Iowa 2000) (en banc),

abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2

(Iowa 2001). Brown now asks us to take a different approach under the

Iowa Constitution. For the reasons explained below, we decline to do so.

We first address Brown’s constitutional claim, and then turn to her

ineffective-assistance-of-counsel claim based on an argument not raised

during her motion to suppress in the district court.

A. Subjective Reasons to Stop Motorists.

1. The Fourth Amendment. The Fourth Amendment of the United

States Constitution protects individuals from unreasonable searches and

seizures. Whren v. United States, 517 U.S. 806, 809, 116 S. Ct. 1769,

1772 (1996); see also U.S. Const. amend. IV (“The right of the people to be

secure in their persons . . . against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable

cause . . . .”). Under the Fourth Amendment, the temporary detention of

a motorist during a traffic stop is a “seizure,” which is “subject to the

constitutional imperative that it not be ‘unreasonable’ under the

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circumstances.” Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772.

Generally, a traffic stop is reasonable when the police have probable cause

or reasonable suspicion to believe that the motorist violated a traffic law.

Navarette v. California, 572 U.S. 393, 401–02, 134 S. Ct. 1683, 1690

(2014); Whren, 517 U.S. at 809–10, 116 S. Ct. at 1772; State v. Tague, 676

N.W.2d 197, 204 (Iowa 2004).

In Whren, the United States Supreme Court unanimously held that

an officer’s “[s]ubjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.” 517 U.S. at 813, 116 S. Ct. at 1774. In

that case, police officers stopped a motorist and his passenger in a “high

drug area” after observing the motorist turning without signaling then

speed “off at an ‘unreasonable speed.’ ” Id. at 808, 116 S. Ct. at 1772.

Upon stopping the motorist, one of the officers observed drugs in the

motorist’s hands. Id. at 808–09, 116 S. Ct. at 1772. The officers arrested

the motorist and his passenger and retrieved various illegal drugs from the

vehicle. Id. at 809, 116 S. Ct. at 1772. Both the motorist and his

passenger were convicted of violating numerous drug laws and sought to

have their convictions reversed, arguing the district court should have

granted their suppression motions since the traffic stop was pretextual.

Id.

The petitioners in Whren asked the Supreme Court to adopt a

different reasonableness test for traffic stops since the traffic code is so

expansive that it provides officers with discretion to make pretextual stops

based on factors such as race. Id. at 810, 116 S. Ct. at 1773. Specifically,

the petitioners claimed the test for traffic stops should be “whether a police

officer, acting reasonably, would have made the stop for the reason given.”

Id. In rejecting petitioners’ test, the Supreme Court noted, “Not only have

we never held, outside the context of inventory search or administrative

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inspection . . . , that an officer’s motive invalidates objectively justifiable

behavior under the Fourth Amendment; but we have repeatedly held and

asserted the contrary.” Id. at 812, 116 S. Ct. at 1774. The Supreme Court

“agree[d] with petitioners that the Constitution prohibits selective

enforcement of the law based on considerations such as race.” Id. at 813,

116 S. Ct. at 1774. However, it declared “the constitutional basis for

objecting to intentionally discriminatory application of laws is the Equal

Protection Clause, not the Fourth Amendment.” Id.

The Supreme Court acknowledged the expansive nature of the traffic

code and the potential for an “unsettling show of authority” that enforcing

such an expansive code created. Id. at 817, 116 S. Ct. at 1776 (quoting

Delaware v. Prouse, 440 U.S. 648, 657, 99 S. Ct. 1391, 1398 (1979)).

Nevertheless, it was “aware of no principle that would allow [it] to decide

at what point a code of law becomes so expansive and so commonly

violated that infraction itself can no longer be the ordinary measure of the

lawfulness of enforcement.” Id. at 818, 116 S. Ct. at 1777. It concluded,

“[F]or the run-of-the-mine case, which this surely is, we think there is no

realistic alternative to the traditional common-law rule that probable

cause justifies a search and seizure.” Id. at 819, 116 S. Ct. at 1777.

On appeal, Brown concedes that the officer’s subjective motivations

are irrelevant under the Fourth Amendment to the United States

Constitution so long as there is probable cause to support the stop. We

therefore turn to the question whether the Iowa Constitution forbids

stopping a motorist who violated the law if that was not the officer’s real

reason for the stop.

2. Article I, section 8. The question before us is whether, under the

Iowa Constitution, a traffic stop for a traffic violation is “reasonable” even

if the violation did not happen to be the officer’s motivation for the stop.

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To put it another way, we must decide whether a motorist who violates a

traffic law has a justified expectation that she will be able to continue down

the road without interruption unless that violation is the officer’s

motivation for the stop. As we will explain herein, we do not think article

I, section 8 draws such fine lines. It is reasonable to stop a motorist based

on reasonable suspicion that the motorist violated the law.

i. Scope of article I, section 8. Article I, section 8 of the Iowa

Constitution protects persons against “unreasonable seizures.” Iowa

Const. art. I, § 8 (“The right of the people to be secure in their persons . . .

against unreasonable seizures and searches shall not be violated; and no

warrant shall issue but on probable cause . . . .”). It should be noted that

article I, section 8 and the Fourth Amendment have only minimal textual

differences. Article I, section 8 employs a semicolon between the

reasonableness and warrant clauses while the Fourth Amendment uses a

comma between these two clauses. 1 State v. Gaskins, 866 N.W.2d 1, 6

(Iowa 2015).

Current members of our court have disagreed about the semicolon’s

significance. Compare State v. Short, 851 N.W.2d 474, 483 (Iowa 2014)

(“This semicolon suggests the framers believed that there was a

relationship between the reasonableness clause and the warrant

clause . . . .”), with id. at 522 (Mansfield, J., dissenting) (“I do not think

one can use this inconsequential punctuation difference to justify a

different interpretation of article I, section 8.”). “One expects that, if the

semicolon in [a]rticle I, section 8 fundamentally altered the meaning of that

provision, this argument [over differences in punctuation marks] would

1We also note a textual difference for order of appearance; the Iowa Constitution

reverses the order of “searches and seizures.”

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have emerged at some point within the first 150 years . . . .” Gaskins, 866

N.W.2d at 52 n.27 (Waterman, J., dissenting).

There is also evidence in the 1857 debates over the Iowa

Constitution that our framers wanted our bill of rights to provide similar

protection to the Federal Bill of Rights when they adopted similar

language. For example, George W. Ells proposed an amendment at the

convention to include a counterpart to the Federal Due Process Clause in

the Iowa Constitution, noting, “[T]he committee who have offered the

amendment to this second section, did so from a desire that the Bill of

Rights in the Constitution of this State, should be as strong, in this respect,

as the Constitution of the United States.” 1 The Debates of the

Constitutional Convention of the State of Iowa 101–02 (W. Blair Lord rep.,

1857), https://www.statelibraryofiowa.org/services/collections/law-

library/iaconst (emphasis added). Ellis noted his desire for his proposed

due process amendment for the Iowa Constitution to be verbatim to the

Federal Due Process Clause. Id. at 101. If the framers of the Iowa

Constitution wanted to create greater search and seizure protections for

Iowans, the nearly identical language of article I, section 8 to the Fourth

Amendment does not reflect this desire.

We generally “interpret the scope and purpose of the Iowa

Constitution’s search and seizure provisions to track with federal

interpretations of the Fourth Amendment” because of their nearly identical

language. State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008).

Nevertheless, we acknowledge our duty to interpret article I, section 8

independently. See Cline, 617 N.W.2d at 292–93. “We jealously guard our

right to construe a provision of our state constitution differently than its

federal counterpart, though the two provisions may contain nearly

identical language and have the same general scope, import, and purpose.”

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State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016) (quoting State v.

Jackson, 878 N.W.2d 422, 442 (Iowa 2016)).

However, as to article I, section 8, we are not writing on a blank

slate. In State v. Griffin, 691 N.W.2d 734 (Iowa 2005), which was decided

after Cline, we ruled unanimously as follows:

We now hold that our pronouncement in Meyer was not only

a correct application of federal law but also accurately

described the validity of a pretextual arrest under article I,

section 8 of the Iowa Constitution for purposes of sustaining

a search incident to that arrest. If probable cause exists for

an arrest to be made, the motive for making the arrest does

not limit the right to conduct a search incident thereto.

Id. at 737. And in State v. Kreps, 650 N.W.2d 636 (Iowa 2002), also decided

after Cline, we said,

The motivation of the officer stopping the vehicle is not

controlling in determining whether reasonable suspicion

existed. The officer is therefore not bound by his real reasons

for the stop.

Id. at 641 (citation omitted). 2 So, the question today is whether we should

overturn our article I, section 8 precedent.

As already noted, we have similarly held under article I, section 8

that “the motive for making the arrest does not limit the right to conduct

a search incident thereto” under the Iowa Constitution “[i]f probable cause

exists for an arrest to be made.” Griffin, 691 N.W.2d at 737. In Griffin, an

officer stopped the defendant due to an improperly illuminated rear license

plate and an excessively loud muffler. Id. at 736. The officer’s “computer

check indicated a recent prior conviction for failing to have proof of liability

insurance for the vehicle he was driving and prior drug-related arrests.”

Id. The defendant informed the officer that he did not have liability

2In State v. Harrison, 846 N.W.2d 362 (Iowa 2014), we quoted this language from

Kreps with approval. Id. at 366. However, in that case we also said, “The parties did not

raise on appeal the issue of whether a pretextual traffic stop is valid. We therefore do not

reach that issue.” Id. at 364 n.1.

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insurance, and the officer arrested the defendant for all three traffic

violations he observed. Id. The officer’s search of the vehicle incident to

arrest revealed drugs, and the officer testified at the suppression hearing

that he would not have arrested the defendant if he had not suspected the

vehicle contained drugs based on the defendant’s prior drug convictions.

Id. We rejected the defendant’s claim that the evidence obtained from the

search should have been suppressed because it was obtained incident to

a pretextual arrest in violation of article I, section 8 of the Iowa

Constitution. Id. at 735–36.

Brown asks us to decline to follow our approach Griffin and Kreps

in evaluating the constitutionality of pretextual traffic stops under the

Iowa Constitution.

ii. Brown’s proposed burden-shifting framework. Brown proposes

that we interpret article I, section 8 more broadly than the Fourth

Amendment and adopt a burden-shifting test for evaluating traffic stops.

Under this burden-shifting test, a court would allow the State to provide

an objective basis for the stop, allow the defendant to rebut that with

evidence of subjective motivation, and then allow the State to come forward

and show that the objective basis was the real reason for the stop. We find

this test unworkable for a number of reasons.

First, Brown’s proposed burden-shifting test is difficult to

administer. While this test appears objective on its face, it is ultimately a

subjective standard that focuses on the officer’s state of mind at the time

of the traffic stop. “ ‘[O]bjective evidence’ of . . . general police practice is

simply an aggregation of the subjective intentions of officers in the

regions.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). For

example, in Iowa, police practices can range from county to county. The

usual practice of police officers in Polk County may not represent the usual

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practice of police officers in Shelby County, as the problems police officers

must regularly confront in the course of their job duties quite possibly

differ between rural and urban counties. Likewise, what may seem like a

common and reasonable practice for a narcotics officer may seem

unreasonable to the highway patrolman. Consequently, the

reasonableness, and thus the validity, of the officer’s traffic stop may turn

on the county in which it is made or the detaining officer’s law enforcement

division. Yet, the search and seizure protections of article I, section 8 and

the Fourth Amendment do not vary, nor “can [they] be made to turn upon

such trivialities.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775.

Brown’s burden-shifting test also fails to consider that there are

often a number of factors influencing an officer’s decision-making process.

We have previously concluded that parking in a frequently burglarized

area can lead to an officer’s decision to stop a motorist. State v.

Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (per curiam). So, too, can

pouring a can of beer out onto the pavement of a tavern parking lot at “a

time notorious for drunken driving.” State v. Rosenstiel, 473 N.W.2d 59,

62 (Iowa 1991), overruled on other grounds by Cline, 617 N.W.2d at 281.

It is unclear under the proposed burden-shifting test when these

situations become pretextual. Our search and seizure jurisprudence

requires more certainty and uniformity than the burden-shifting test

provides.

Second, Brown bases her request for a burden-shifting test on

concerns of racial profiling. Brown does not argue that Officer Brandt

knew she was African-American before initiating the traffic stop. Instead,

the observed traffic violations precipitated Officer Brandt discovering the

vehicle’s registered owner’s gang affiliation. A key element that often

defines gangs or gang behavior is “violent or criminal behavior as a major

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activity of group members.” William B. Sanders, Gangbangs and Drive-

Bys 10 (1994).

Though we acknowledge that police discretion can lead to racial

profiling, we are not persuaded that Brown’s approach would have any

significant impact on eliminating racial profiling. Racial profiling concerns

existed when we decided Griffin, and many of the racial profiling studies

Brown cites predate Griffin. An officer who engages in racial profiling is

also likely to be willing to lie about it. We are hopeful, though, that the

spread of technology such as body cams, dash cams, and cell phone videos

taken by private citizens will enable our society to better monitor and

reduce racial profiling in the future.

Third, the burden-shifting test is also unnecessary to protect

citizens from unlawful searches and seizures. “[T]he harsh reality [is] that

we lack the ability to control all the variables leading to disparate

enforcement. In few areas is this more observable than in our criminal

justice system.” Jeff D. May et al., Pretext Searches and Seizures: In Search

of Solid Ground, 30 Alaska L. Rev. 151, 184–85 (2013) [hereinafter May et

al.]. The criminal justice system is rife with “so many variables that

influence who becomes subject to prosecution that it is difficult to isolate

any one causal source of the disparate representation we see in our

statistics.” Id. at 185. Because of the numerous factors influencing law

enforcement, especially regarding areas of the law as expansive as the

traffic code, “[t]here is real doubt that we will ever eradicate the use of

pretext motivations even if we were to prohibit them.” Id.

Law enforcement officers “make judgments and mental shortcuts

based on [their] past experiences and training.” Id. It appears “somewhat

easier to figure out the intent of an individual officer than to plumb the

collective consciousness of law enforcement in order to determine whether

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a ‘reasonable officer’ would have been moved to act upon the traffic

violation.” Whren, 517 U.S. at 815, 116 S. Ct. at 1775. Brown’s approach

of effectively prohibiting pretextual stops outright only risks “push[ing] its

use further into the shadows.” May et al., 30 Alaska L. Rev. at 185.

This case involves a relatively common scenario where a late-night

traffic stop based on an observed violation of the traffic code leads to a

determination that the driver was intoxicated and to an OWI conviction.

Although it is our job to interpret the Iowa Constitution and not to set

policy for the State of Iowa, we think most Iowans favor this policy outcome

and would not want reduced enforcement of the drunk driving laws.

Iowa law already provides motorists with protections meant to

curtail law enforcement’s abuse of authority during traffic stops. Under

article I, section 8 of the Iowa Constitution, the officer must allow a

motorist to leave “when the reason for a traffic stop is resolved and there

is no other basis for reasonable suspicion.” State v. Coleman, 890 N.W.2d

284, 301 (Iowa 2017). Iowa also restricts the scope of the search-incident-

to-arrest exception to the warrant requirement under the Iowa

Constitution to limit law enforcement’s ability to gather evidence incident

to arrest. See Gaskins, 866 N.W.2d at 16–17. Thus, officers may not rely

on the search-incident-to-arrest exception to search a motorist’s vehicle

on the grounds that the officers believe the vehicle contains evidence of

the arresting offense. Id. at 13–14. We even analyze a motorist’s consent

to the search of a vehicle during a traffic stop more rigorously in Iowa. See

State v. Pals, 805 N.W.2d 767, 782–83 (Iowa 2011) (applying a narrow

version of the federal totality-of-the-circumstances test in determining

consent was involuntary). These additional protections for motorists in

Iowa help limit the potential for an abuse of authority that Brown is

concerned with reducing.

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All of this is not to say that the officer’s subjective motivations are

never relevant in determining the validity of a traffic stop. “The more

evidence that a detention was motivated by police suspicions unrelated to

the traffic offense, the less credible the officer’s assertion that the traffic

offense occurred.” State v. Lopez, 873 P.2d 1127, 1138–39 (Utah 1994).

The district court considers the officer’s credibility in determining at the

suppression hearing whether the facts justified the officer’s traffic stop at

its inception. If the district court doubts the officer’s credibility and finds

the motorist did not commit a traffic violation, then the stop is

unconstitutional. In the event of an unconstitutional traffic stop based on

a claim of selective enforcement, the Equal Protection Clause—not the

State or Federal Search and Seizure Clause—is the proper claim to bring

when seeking recourse. Whren, 517 U.S. at 813, 116 S. Ct. at 1774. To

be certain, the Equal Protection Clause prohibits selective enforcement of

the law based on racially discriminatory grounds. See, e.g., id. (“[T]he

Constitution prohibits selective enforcement of the law based on

considerations such as race. But the constitutional basis for objecting to

intentionally discriminatory application of laws is the Equal Protection

Clause, not the Fourth Amendment.”); United States v. Coney, 456 F.3d

850, 856 n.4 (8th Cir. 2006); United States v. Frazier, 408 F.3d 1102, 1108

(8th Cir. 2005); Johnson v. Crooks, 326 F.3d 995, 999–1000 (8th Cir.

2003); Chavez v. Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001);

Gardenhire v. Schubert, 205 F.3d 303, 319–20 (6th Cir. 2000); United

States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996); United States v. Benitez,

613 F. Supp. 2d 1099, 1101–02 (S.D. Iowa 2009); In re Prop. Seized from

Kaster, 454 N.W.2d 876, 880 (Iowa 1990) (en banc); State v. Durrell, 300

N.W.2d 134, 135–36 (Iowa 1981); State v. Walker, 236 N.W.2d 292, 295

(Iowa 1975).

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Brown’s request for a departure from Griffin and Kreps and adoption

of a burden-shifting framework for evaluating traffic stops would create

instability in the law, hinder law enforcement efforts, weaken the strength

of our adversarial system, and undermine public confidence in the legal

system. This kind of burden-shifting may work well in employment

discrimination law, where there will usually be a fairly detailed record to

evaluate, but it would be a challenge to apply in the thousands of

suppression hearings where the legality of split-second actions are at

issue.

iii. Other states’ approaches. Not only does our article I, section 8

precedent hold that traffic stops for traffic violations are reasonable

regardless of the officer’s subjective motivation, but the vast majority of

other jurisdictions agree with us. In addition to Iowa, forty states and the

District of Columbia follow the same objective standard we outlined in

Griffin and Kreps. 3 Brown points to only three states that have adopted a

3See, e.g., State v. Ossana, 18 P.3d 1258, 1260 (Ariz. Ct. App. 2001) (relying on

Whren for a Fourth Amendment claim and holding “[t]he officers had the right to stop

appellant’s car if they reasonably believed he had committed a traffic violation”); State v.

Mancia-Sandoval, 361 S.W.3d 835, 839–40 (Ark. 2010) (“As previously noted, a pretextual

stop is not impermissible under either the federal or Arkansas Constitution and, thus,

does not invalidate an otherwise lawful stop of the vehicle.”); People v. Miranda, 21 Cal.

Rptr. 2d 785, 789 (Ct. App. 1993) (determining under the Fourth Amendment, “the

subjective motivation of an arresting officer is irrelevant in determining the propriety of a

traffic stop”); People v. Ingram, 984 P.2d 597, 603 (Colo. 1999) (en banc) (concluding

under the Fourth Amendment, “[a] reviewing court must base its analysis of whether

reasonable suspicion exists on an objective analysis and not upon the subjective intent

of the arresting officer”); Karamychev v. District of Columbia, 772 A.2d 806, 813 n.9 (D.C.

Cir. 2001) (applying Whren, “if [the officer] had an adequate objective basis to stop (and

then arrest) Karamychev, his subjective motivation was legally irrelevant”); Holland v.

State, 696 So. 2d 757, 760 (Fla. 1997) (applying the objective standard established in

Whren in state constitutional analysis and noting “the Whren Court made it clear that

subjective viewpoints no longer factor into the analysis”); State v. Bolosan, 890 P.2d 673,

681 (Haw. 1995) (“This court has also disapproved of analyses of officers’ subjective bases

for conducting investigatory stops in favor of an objective standard, and we see no reason

to depart from that position.” (Citation omitted.)); State v. Myers, 798 P.2d 453, 455 (Idaho

Ct. App. 1990) (concluding for a Fourth Amendment claim, that “any underlying motive

of [the officer] in stopping Myers’ vehicle as a pretext to search for drugs was irrelevant

because the stop was justified by an objectively reasonable basis”); People v. Rucker, 689

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N.E.2d 1203, 1208 (Ill. App. Ct. 1998) (“Regardless of [the officer’s] subjective intention

for stopping the vehicle, the key question is whether he had a reasonable, articulable

suspicion of criminal activity such that he could lawfully stop the vehicle.”); Mitchell v.

State, 745 N.E.2d 775, 787 (Ind. 2001) (holding under the Indiana Constitution, there is

“nothing unreasonable in permitting an officer, who may have knowledge or suspicion of

unrelated criminal activity by the motorist, to nevertheless respond to an observed traffic

violation”); State v. Jones, 333 P.3d 886, 893 (Kan. 2014) (adopting the Whren objective

standard); Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013) (“It has long been

considered reasonable for an officer to conduct a traffic stop if he or she has probable

cause to believe that a traffic violation has occurred.”); State v. Waters, 780 So. 2d 1053,

1056 (La. 2001) (per curiam) (applying Whren and stating, that “[t]he standard [for

assessing the reasonableness of a traffic stop] is a purely objective one that does not take

into account the subjective beliefs or expectations of the detaining officer”); State v. Sasso,

143 A.3d 124, 128 (Me. 2016) (“The Supreme Court holding announced in Whren is

consistent with Maine’s standard for evaluating whether a traffic stop passes

constitutional muster.”); Wilkes v. State, 774 A.2d 420, 430–31 (Md. 2001) (referring to

Whren in determining the constitutionality of a traffic stop under the Fourth Amendment);

Commonwealth v. Buckley, 90 N.E.3d 767, 778 (Mass. 2018) (“Outside of the racial

profiling context—as this case is—the reasonableness of a traffic stop does not depend

upon the particular motivations underlying the stop. . . . [L]egal justification alone, such

as an observed traffic violation, is sufficient.”); People v. Kazmierczak, 605 N.W.2d 667,

672 n.8 (Mich. 2000) (relying on Whren in determining “[t]he traffic stop here was

permissible because [the officer] observed a traffic violation”); State v. George, 557 N.W.2d

575, 578 (Minn. 1997) (en banc) (“Ordinarily, if an officer observes a violation of a traffic

law, however insignificant, the officer has an objective basis for stopping the vehicle.”);

Floyd v. City of Crystal Springs, 749 So. 2d 110, 114–15 (Miss. 1999) (en banc) (referring

to Whren after comparing the “almost identical language” of the Fourth Amendment to

Mississippi’s search and seizure provision); State v. Brink, 218 S.W.3d 440, 445 (Mo. Ct.

App. 2006) (“Whether or not a traffic stop is reasonable and therefore lawful does not

depend on the investigating officer’s motive.”); State v. Farabee, 22 P.3d 175, 180–81

(Mont. 2000) (declining to adopt the “would have” standard rejected in Whren to evaluate

pretextual stops under the Montana Constitution, concluding “[that the court has] never

held, however, that an otherwise objectively justifiable traffic stop is nonetheless unlawful

because a law enforcement officer used the stop to investigate a hunch about other

criminal activity”); State v. Bartholomew, 602 N.W.2d 510, 514 (Neb. 1999) (“If an officer

has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior

motivation on the officer’s part is irrelevant.”); Gama v. State, 920 P.2d 1010, 1013 (Nev.

1996) (per curiam) (holding an officer’s subjective motivation is irrelevant in analyzing the

validity of a traffic stop “because we now conclude that the Nevada Constitution’s search

and seizure clause provides no greater protection than that afforded under its federal

analogue, at least in the area of pretextual traffic stops”); State v. McBreairty, 697 A.2d

495, 497 (N.H. 1997) (“The ultimate test of the propriety of an investigatory stop under

part I, article 19 is whether, viewing the circumstances objectively, an officer had a

specific and articulable basis for concluding that an individual had committed, was

committing, or was about to commit a crime.”); State v. Bacome, 154 A.3d 1253, 1258

(N.J. 2017) (“The objective reasonableness of police officers’ actions—not their subjective

intentions—is the central focus of federal and New Jersey search-and-seizure

jurisprudence.”); People v. Robinson, 767 N.E.2d 638, 642 (N.Y. 2001) (“In making that

determination of probable cause [for a traffic stop], neither the primary motivation of the

officer nor a determination of what a reasonable traffic officer would have done under the

19

circumstances is relevant.”); State v. McClendon, 517 S.E.2d 128, 635 (N.C. 1999)

(rejecting defendant’s request to depart from the objective standard established in Whren

under the North Carolina Constitution because “in general, police action related to

probable cause should be judged in objective terms, not subjective terms”); State v. Oliver,

724 N.W.2d 114, 116 (N.D. 2006) (relying on Whren to determine “that [a] police officer’s

subjective intentions in making a stop are not important as long as a traffic violation has

occurred”); City of Dayton v. Erickson, 665 N.E.2d 1091, 1097–98 (Ohio 1996) (“[W]here

an officer has an articulable reasonable suspicion or probable cause to stop a motorist

for . . . a minor traffic violation, the stop is constitutionally valid regardless of the officer’s

underlying subjective intent or motivation for stopping the vehicle in question.”); Dufries

v. State, 133 P.3d 887, 889 (Okla. Crim. App. 2006) (“[W]here an officer has probable

cause to believe a traffic violation has occurred, his subjective motivation for stopping the

vehicle is irrelevant to the legality of the stop.”); State v. Carter, 600 P.2d 873, 875 (Or.

1979) (en banc) (“The officer’s motives for an otherwise justifiable traffic stop are, as we

held in [State v.] Tucker, [595 P.2d 1364 (Or. 1979)] not relevant to the question of its

validity.”); Commonwealth v. Chase, 960 A.2d 108, 120–21 (Pa. 2008) (concluding that a

state statute allowing police officers to initiate traffic stops based on reasonable suspicion

of vehicle code violations did not offend the state constitution’s search and seizure

provision); State v. Bjerke, 697 A.2d 1069, 1073 (R.I. 1997) (declining to depart from

Whren under the Rhode Island Constitution because it would be “unprincipled and

unwarranted”); State v. Vinson, 734 S.E.2d 182, 184 (S.C. Ct. App. 2012) (referring to

Whren and indicating an officer’s subjective motivations play no role in search and seizure

analysis); State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) (“[W]e conclude that

probable cause justifies a traffic stop under Article I, Section 7 of the Tennessee

Constitution without regard to the subjective motivations of police officers.”); Crittenden

v. State, 899 S.W.2d 668, 673 (Tex. Crim. App. 1995) (en banc) (“Having adopted the

objective approach under the Fourth Amendment, not because of binding precedent, but

because it ‘makes more sense’ than the alternatives, we can hardly justify concluding

otherwise for purposes of Article I, § 9.”); State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994)

(holding an officer’s subjective motivation for making a traffic stop is irrelevant so long as

the traffic stop is based upon probable cause or reasonable suspicion); State v. Tetreault,

181 A.3d 505, 511 (Vt. 2017) (applying Whren and stating that “[a] traffic stop constitutes

a seizure under either [United States or Vermont search and seizure provision] and must

be supported by reasonable suspicion that a motor vehicle violation or other crime is

taking place”); Harris v. Commonwealth, 668 S.E.2d 141, 146 (Va. 2008) (indicating for a

claim pursuant to the Fourth Amendment, that “the Court’s review of whether there was

reasonable suspicion involves application of an objective rather than a subjective

standard”); Muscatell v. Cline, 474 S.E.2d 518, 527 (W. Va. 1996) (“[I]f the trooper did

indeed observe such a misdemeanor violation of the ‘rules of the road’, his stop would

clearly be justified in any event.”); State v. Rutzinski, 623 N.W.2d 516, 520–21 (Wis. 2001)

(relying on the objective standard established in Whren under the Wisconsin

Constitution).

20

different standard, 4 and only two of these states have adopted her

proposed burden-shifting test. 5 Yet, these states have either subsequently

disavowed their new standard or reached that new standard based on a

state constitutional provision different from the Iowa Constitution.

For example, Brown’s reliance on the Superior Court of Delaware’s

holding in State v. Heath, 929 A.2d 390 (Del. Super. Ct. 2006), overlooks

the fact that subsequent Delaware decisions have declined to follow Heath

because “[t]here are too many occasions where . . . there was a lawful basis

to stop a motor vehicle for a traffic violation which led later to arrests for

other kinds of offenses.” State v. Adams, 13 A.3d 1162, 1166–67 (Del.

Super. Ct. 2008). The Delaware Supreme Court has recognized that

“Heath has not been followed in any other Superior Court decisions.”

Turner v. State, 25 A.3d 774, 777 (Del. 2011) (en banc).

Further, Brown’s reliance on the Court of Appeals of New Mexico’s

holding in State v. Ochoa, 206 P.3d 143 (N.M. Ct. App. 2008), ignores the

heightened expectation of privacy New Mexico courts have provided to

motorists in an automobile that Iowa does not afford. The court of appeals

in Ochoa specifically noted that this heightened privacy expectation “ ‘is a

distinct characteristic of New Mexico constitutional law’ and therefore

supports our departure from Whren.” Id. at 151 (quoting State v.

Cardenas-Alvarez, 25 P.3d 225, 231 (N.M. 2001)). In contrast, we have

declined to provide motorists with this same expectation of privacy in their

automobiles and acknowledged “the reduced expectation of privacy [in

automobiles] resulting from the ‘configuration, use and regulation of

4SeeState v. Heath, 929 A.2d 390, 405–06 (Del. Super. Ct. 2006); State v. Ochoa,

206 P.3d 143, 146 (N.M. Ct. App. 2008); State v. Ladson, 979 P.2d 833, 836 (Wash. 1999)

(en banc).

5Heath, 929 A.2d at 402–03; Ochoa, 206 P.3d at 155–57.

21

automobiles.’ ” State v. Storm, 898 N.W.2d 140, 146 (Iowa 2017) (quoting

Arkansas v. Sanders, 442 U.S. 753, 761, 99 S. Ct. 2586, 2591 (1979),

abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 575,

111 S. Ct. 1982, 1989 (1991)).

Finally, Brown’s representation of the Washington Supreme Court’s

holding in State v. Ladson, 979 P.2d 833 (Wash. 1999) (en banc), as

another persuasive example of departure from Whren under a state

constitution, disregards the substantially different search and seizure

provision of the Washington Constitution. Specifically, article I, section 7

of the Washington Constitution provides, “No person shall be disturbed in

his private affairs, or his home invaded, without authority of law.” Wash.

Const. art. I, § 7. As the court noted in Ladson, this provision “is explicitly

broader than that of the Fourth Amendment” and operates under a

different mechanism regarding the citizens’ expectations of privacy.

Ladson, 979 P.2d at 837. Given the differences between the Washington

Constitution’s search and seizure provision and that of the Iowa

Constitution, Ladson carries little persuasive value in how we should

decide this case.

In any event, Washington’s approach “has not resulted in . . .

significantly greater protections” from racial profiling. Margaret M.

Lawton, The Road to Whren and Beyond: Does the “Would Have” Test

Work?, 57 DePaul L. Rev. 917, 920 (2008). Rather, state courts in

Washington continue to do “what courts have always done under the

[Whren] test: determining the credibility of police officers and relying upon

the totality of the circumstances in deciding whether a traffic stop was

constitutionally permissible.” Id. at 919. In doing so, they rarely find

pretextual motivations for the officer’s stop “unless the officer either

testifies to her use of pretext or the court finds that the officer is lying

22

about the reasons for the stop, both of which are relatively uncommon.”

Id. at 957.

In fact, the Washington Supreme Court more recently has retreated

from Ladson and said that it will uphold a stop for a traffic violation “even

if the legitimate reason for the stop is secondary and the officer is

motivated primarily by a hunch or some other reason that is insufficient

to justify a stop.” State v. Arreola, 290 P.3d 983, 991 (Wash. 2012) (en

banc); see also State v. Alvarez, 430 P.3d 673, 677 (Wash. 2018)

(Lawrence-Berrey, C.J., dissenting) (“It is clear that law enforcement can

conduct an investigatory stop for traffic infractions.”).

We conclude that the objective test articulated in Whren applies to

constitutional challenges to traffic stops under article I, section 8 of the

Iowa Constitution. Interpreting article I, section 8 coextensive with the

Fourth Amendment in this case “ensure[s] that the validity of such stops

is not subject to the vagaries of police departments’ policies and

procedures concerning the kinds of traffic offenses of which they ordinarily

do or do not take note.” Ferguson, 8 F.3d at 392. At the same time, it

does not insulate people engaged in more egregious criminal activity “from

criminal liability for those activities simply because a judge determines

that the police officer who executed the traffic stop, had he been the

mythical reasonable officer, would not have stopped them” for the traffic

violation they committed. Id. Moreover, the objective standard set forth

in Griffin and Kreps provides law enforcement officers with a degree of

certainty that they are acting appropriately when they choose to enforce

the traffic violations they witness. We should not penalize law enforcement

for enforcing the law.

Our holding today recognizes this need for consistency by adhering

to our prior holdings. See Brewer-Strong v. HNI Corp., 913 N.W.2d 235,

23

249 (Iowa 2018) (“From the very beginnings of this court, we have guarded

the venerable doctrine of stare decisis and required the highest possible

showing that a precedent should be overruled before taking such a step.”

(quoting McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005))); see also

Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015)

(“Stare decisis alone dictates continued adherence to our precedent absent

a compelling reason to change the law.”). Stare decisis “is an important

restraint on judicial authority and provides needed stability in and respect

for the law.” Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J.,

dissenting), overruled on other grounds by Alcala v. Marriott Int’l Inc., 880

N.W.2d 699, 708 & n.3 (Iowa 2016). Though it is “our role as a court of

last resort . . . to occasionally reexamine our prior decisions, we must

undertake this weighty task only for the most cogent reasons and with the

greatest caution.” Id.

We decided Griffin under the Iowa Constitution less than fifteen

years ago, in which we made clear that an officer’s ulterior “motive for

making the arrest does not limit the right to conduct a search incident

thereto” under the Iowa Constitution “[i]f probable cause exists for an

arrest to be made.” 691 N.W.2d at 737. Despite recognizing that we were

not bound by Fourth Amendment precedent, we nevertheless “found no

basis to distinguish the protections afforded by the Iowa Constitution from

those afforded by the [F]ederal [C]onstitution under the facts of [the] case.”

Id. Brown provides no new arguments that show our holding in Griffin, or

our approval of Whren in Predka, was clearly erroneous. See Brewer-

Strong, 913 N.W.2d at 249 (“This highest possible showing [for overruling

precedent] requires a demonstration that the precedent is clearly

erroneous.”).

24

B. Brown’s Ineffective-Assistance-of-Counsel Claim. Brown

acknowledges her trial counsel did not specifically address her claim on

appeal that Officer Brandt lacked probable cause for the stop because she

did not violate any traffic laws. However, she asks the court to analyze

this issue under an ineffective-assistance-of-counsel claim. The record

before us is sufficient to address Brown’s ineffective-assistance claim, and

we proceed to consider her claim.

To succeed on her ineffective-assistance-of-counsel claim, Brown

must prove (1) counsel failed to perform an essential duty and (2) prejudice

resulted. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). To establish

the first prong, Brown must show her counsel “made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

We approach the first prong with the presumption counsel performed her

duties competently; “we measure counsel’s performance against the

standard of a reasonably competent practitioner.” State v. Maxwell, 743

N.W.2d 185, 195 (Iowa 2008). Although not required to predict changes

in the law, “counsel must ‘exercise reasonable diligence in deciding

whether an issue is “worth raising.” ’ ” State v. Dudley, 766 N.W.2d 606,

620 (Iowa 2009) (quoting State v. Westeen, 591 N.W.2d 203, 210 (Iowa

1999)). Counsel is not burdened with the duty to raise an issue that has

no merit. Id.; see also State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008).

The second prong—prejudice—results when “there is a reasonable

probability that, but for the counsel’s unprofessional errors, the result of

the proceeding would have been different.” Wills, 696 N.W.2d at 22

(quoting Hopkins, 576 N.W.2d at 378).

Because we did not find a basis to diverge from the protection

afforded by the Iowa Constitution from that afforded by the United States

25

Constitution under the facts of this case, our analysis will apply equally to

both state and federal grounds. See Iowa Const. art. I, § 10; State v.

Nitcher, 720 N.W.2d 547, 553 (Iowa 2006).

If a traffic violation occurred, and the peace officer witnessed it, the

State has established probable cause. 6 State v. Tyler, 830 N.W.2d 288,

292 (Iowa 2013); see also United States v. Mendoza, 677 F.3d 822, 827

(8th Cir. 2012); Tague, 676 N.W.2d at 201 (“When a peace officer observes

a violation of our traffic laws, however minor, the officer has probable

cause to stop a motorist.”). However, the State must bear the burden of

proof by a preponderance of the evidence that the officer had probable

cause to stop the vehicle. Tyler, 830 N.W.2d at 293. If the State does not

meet this burden, all evidence obtained at the stop must be suppressed.

State v. Louwrens, 792 N.W.2d 649, 651–52 (Iowa 2010). “The existence

of probable cause for a traffic stop is evaluated ‘from the standpoint of an

objectively reasonable police officer.’ ” Tyler, 830 N.W.2d at 293–94

(quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,

1661–62 (1996)).

Brown claims her trial counsel was ineffective for failing to challenge

the establishment of probable cause for the stop. She concedes her trial

counsel did properly challenge the legality of a pretextual stop, but

ultimately failed to address the required probable cause. The State

responds to the ineffective-assistance claim by indicating a peace officer

witnessed the multiple traffic violations Brown committed. Specifically,

that Brown acted in violation of Iowa Code section 321.257, thereby

providing probable cause for the stop.

6A peace officer may also stop a vehicle on less than probable cause for the

investigation of unusual behavior that reasonably causes the peace officer to believe

criminal activity is afoot. Tague, 676 N.W.2d at 204; see also Terry v. Ohio, 392 U.S. 1,

30, 88 S. Ct. 1868, 1884 (1968).

26

At the suppression hearing, Officer Brandt testified to witnessing

Brown in violation of multiple traffic laws prior to initiating the stop.

Foremost, Officer Brandt observed Brown’s vehicle accelerate through an

intersection after the traffic-control signal changed from yellow to red.

This is in clear violation of Iowa’s regulation of vehicular traffic. See Iowa

Code § 321.257. A yellow light “means vehicular traffic is warned that the

related green movement is being terminated and vehicular traffic shall no

longer proceed into the intersection and shall stop.” Id. § 321.257(2)(b). A

red light “means vehicular traffic shall stop.” Id. § 321.257(2)(a). This

traffic violation alone, however minor, is sufficient probable cause to stop

a motorist. Tague, 676 N.W.2d at 201. It is undisputed Officer Brandt

witnessed this traffic violation while queued at the same intersection

Brown accelerated through. The State carried its burden. See Tyler, 830

N.W.2d at 293; see also Mendoza, 677 F.3d at 827. Officer Brandt’s stop

of Brown’s vehicle was based on probable cause—violation of Iowa Code

section 321.257. For that reason, Brown’s trial counsel was not ineffective

for failing to challenge probable cause. See Nitcher, 720 N.W.2d at 555

(noting trial counsel was not ineffective for failing to raise an issue with no

merit). Accordingly, Brown has failed to establish the first prong of her

ineffective-assistance-of-counsel claim, and her claim must fail. See

Hopkins, 576 N.W.2d at 380 (acknowledging failure to prove either

ineffective-assistance prong is fatal to the claim).

IV. Conclusion.

We affirm the district court decision for the aforementioned reasons.

AFFIRMED.

Waterman and Mansfield and McDonald, JJ., join this opinion.

McDonald, J., files a separate concurring opinion. Cady, C.J., files a

27

dissenting opinion in which Wiggins, J., joins. Appel, J., files a separate

dissenting opinion in which Wiggins, J., joins.

28

#17–0367, State v. Brown

McDONALD, Justice (concurring specially).

Scottize Brown failed to establish a violation of her rights arising

under the Federal or Iowa Constitutions, and the district court did not err

in denying Brown’s motion to suppress. I thus concur in Justice

Christensen’s opinion affirming Brown’s conviction and sentence. I write

separately to address Brown’s argument the Federal Constitution sets the

floor for claims arising under the Iowa Constitution.

I.

“Beginning in the 1960s . . . , a growing number of states began to

rediscover the independent nature of their state constitutional provisions.

[This movement is s]ometimes called the ‘new judicial federalism’ . . . .”

State v. Baldon, 829 N.W.2d 785, 814 (Iowa 2013) (Appel, J., specially

concurring). In 1977, Justice William Brennan galvanized this movement

with “his call to arms for state courts.” Id. at 790 (majority opinion); see

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

Rights, 90 Harv. L. Rev. 489, 503 (1977). Several decades after Justice

Brennan’s call to arms, this court began to systematically address legal

questions arising under the Iowa Constitution.

The fundamental premise of this court’s most recent jurisprudence

in the area of state constitutional law has been that “although this court

cannot interpret the Iowa Constitution to provide less protection than that

provided by the United States Constitution, the court is free to interpret

our constitution as providing greater protection for our citizens’

constitutional rights.” State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000)

(en banc), abrogated on other grounds by State v. Turner, 630 N.W.2d 601,

606 n.2 (Iowa 2001). Pursuant to this premise, this court has treated the

29

Iowa Constitution as a one-way ratchet to provide only greater rights and

remedies than a parallel provision of the United States Constitution. See,

e.g., Behm v. City of Cedar Rapids, 922 N.W.2d 524, 566 (Iowa 2019) (“As

a result, we apply the substantive federal standards, reserving the right to

apply these standards in a more stringent fashion than under federal

caselaw.”); Schmidt v. State, 909 N.W.2d 778, 793 (Iowa 2018) (“The Iowa

Constitution affords individuals greater rights than does the United States

Constitution.”); State v. Pettijohn, 899 N.W.2d 1, 26 (Iowa 2017) (“In

assessing that caselaw, we remain mindful that decisions of the Supreme

Court addressing the scope of a right guaranteed by the United States

Constitution set a floor below which the scope of a right guaranteed by the

Iowa Constitution may not fall, but not a ceiling above which it may not

rise.”); State v. Sweet, 879 N.W.2d 811, 832 (Iowa 2016) (“In any event, the

rulings of the United States Supreme Court create a floor, but not a ceiling,

when we are called upon to interpret parallel provisions of the Iowa

Constitution.”); Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016) (“We

are free to interpret our constitution more stringently than its federal

counterpart, providing greater protection for our citizens’ constitutional

rights.”); Baldon, 829 N.W.2d at 791 & n.1 (“[T]he 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. . . . The incorporation doctrine commands that we

no longer use independent state grounds to sink below the federal floor.”).

The fundamental premise of our recent jurisprudence is not sound.

This court is free to interpret our constitution to provide less or more

protection than the Federal Constitution. See State v. Hampton, No.

18-0061, 2019 WL 476471, at *1–3 (Iowa Ct. App. Feb. 6, 2019) (explaining

30

Iowa courts can interpret the state constitution to provide less protection

than the Federal Constitution); State v. Halverson, No. 16-1614, 2017 WL

5178997, at *3 (Iowa Ct. App. Nov. 8, 2017) (explaining the relevant

question is what the state constitutional text means and how it applies to

the facts and circumstances of the case at hand and not whether Iowa

courts should interpret the Iowa Constitution “more strictly” or “more

broadly” than the Federal Constitution); State v. Bohl, No. 15–1546, 2016

WL 4543957, at *1–2 (Iowa Ct. App. Aug. 31, 2016) (“Depending upon the

particular issue, our precedents interpreting article I, section 8 may

provide greater or lesser protection than cases interpreting the Fourth

Amendment.”); State v. Barth, No. 14–1929, 2016 WL 740302, at *3 (Iowa

Ct. App. Feb. 24, 2016) (“Barth contends the Iowa Constitution provides

greater protection than the Federal Constitution without specifying why or

how. Regardless, Barth misstates the issue. Depending upon the

particular issue, our precedents interpreting article I, section 8 may

provide greater or lesser protection than cases interpreting the Fourth

Amendment.”).

The conclusion that this court can interpret the Iowa Constitution

to provide less or more protection than a parallel provision of the Federal

Constitution is inherent in the federal system. The Bill of Rights, in and

of itself, applies only to the federal government. See Timbs v. Indiana, ___

U.S. ___, ___, 139 S. Ct. 682, 687 (2019) (“When ratified in 1791, the Bill

of Rights applied only to the Federal Government.”); Danforth v. Minnesota,

552 U.S. 264, 269, 128 S. Ct. 1029, 1034 (2008); Barron v. Mayor & City

Council of Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833). The Supreme Court

is the final arbiter of the meaning of the Federal Constitution. In contrast,

the Iowa Constitution applies to the state government. This court is the

final arbiter of the meaning of the Iowa Constitution. See Minnesota v.

31

Nat’l Tea Co., 309 U.S. 551, 557, 60 S. Ct. 676, 679 (1940) (“It is

fundamental that state courts be left free and unfettered by us in

interpreting their state constitutions.”). In determining the meaning of

state constitutional law, this court has a duty to independently determine

the meaning of the Iowa Constitution. See State v. Gaskins, 866 N.W.2d

1, 7 (Iowa 2015). This is true whether we interpret the Iowa Constitution

to provide less or more protection than the Federal Constitution.

Brown’s contention that the incorporation doctrine dictates the

minimum required content of state constitutional law misapprehends the

incorporation doctrine. Incorporation did not change the substantive

content of state constitutional law; it changed the substantive content of

federal constitutional law. Specifically, the Supreme Court held the Due

Process Clause of the Fourteenth Amendment incorporated most of the

Bill of Rights. See Timbs, ___ U.S. at ___, 139 S. Ct. at 687 (“With only ‘a

handful’ of exceptions, this Court has held that the Fourteenth

Amendment’s Due Process Clause incorporates the protections contained

in the Bill of Rights, rendering them applicable to the States.” (quoting

McDonald v. City of Chicago, 561 U.S. 742, 765, 130 S. Ct. 3020, 3035

(2010))). “Incorporated Bill of Rights guarantees are ‘enforced against the

States under the Fourteenth Amendment according to the same standards

that protect those personal rights against federal encroachment.’ ” Id.

(quoting McDonald, 561 U.S. at 765, 130 S. Ct. at 3035). Pursuant to the

Supremacy Clause, this court is bound to apply the Supreme Court’s

Fourteenth Amendment jurisprudence to resolve claims arising under the

Fourteenth Amendment. See Armstrong v. Exceptional Child Ctr., Inc., ___

U.S. ___, ___, 135 S. Ct. 1378, 1383 (2015) (explaining the Supremacy

Clause is not a source of substantive rights but instead provides for a

federal rule of decision where a litigant asserts a federal claim). The

32

Supreme Court’s Fourteenth Amendment jurisprudence does not dictate

the substance of the state law or the remedy for any violation of the same.

See Virginia v. Moore, 553 U.S. 164, 178, 128 S. Ct. 1598, 1608 (2008)

(“[I]t is not the province of the Fourth Amendment to enforce state law.

That Amendment does not require the exclusion of evidence obtained from

a constitutionally permissible arrest.”); Fuller v. Oregon, 417 U.S. 40, 48

n.9, 94 S. Ct. 2116, 2122 n.9 (1974) (“[T]he dissent purports to resolve

questions of state [constitutional] law that this Court does not have power

to decide.”); Nat’l Tea Co., 309 U.S. at 557, 60 S. Ct. at 679 (“It is

fundamental that state courts be left free and unfettered by us in

interpreting their state constitutions.”); see also Collins v. Virginia, ___ U.S.

___, ___, 138 S. Ct. 1663, 1680 n.6 (2018) (Thomas, J., concurring) (“[T]he

States are free to adopt their own exclusionary rules as a matter of state

law. But nothing in the Federal Constitution requires them to do so.”);

Massachusetts v. Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984)

(per curiam) (Stevens, J., concurring in the judgment).

This understanding that incorporation does not dictate the meaning

of state law is supported by former Oregon Supreme Court Justice Hans

Linde. Justice Linde is widely considered the “intellectual godfather” of

the new judicial federalism. James A. Gardner, The Failed Discourse of

State Constitutionalism, 90 Mich. L. Rev. 761, 774 (1992) (quoting Ronald

K.L. Collins, Forward: The Once “New Judicial Federalism” & Its Critics, 64

Wash. L. Rev. 5, 5 (1989)). Members of this court have favorably cited the

work of Justice Linde when interpreting the Iowa Constitution. See

Gaskins, 866 N.W.2d at 55 (Waterman, J., dissenting) (citing Hans A.

Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt.

L. Rev. 379, 392 (1980) [hereinafter Linde, First Things First]); Baldon, 829

N.W.2d at 821 (Appel, J., specially concurring) (quoting Justice Linde’s

33

opinion in State v. Kennedy, 666 P.2d 1316, 1322 (Or. 1983)). In Baldon,

Justice Appel noted Justice Linde was an “extraordinary state court judge[]

with [an] outstanding reputation[ who] ha[s] helped to develop what is now

a substantial body of independent state constitutional law.” 829 N.W.2d

at 828. He further noted there was “no basis to discount the work of th[is]

outstanding state supreme court justice[].” Id. He also lauded Justice

Linde’s outstanding extrajudicial scholarship. See id. at 828 n.23 (citing

Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga.

L. Rev. 165 (1984) [hereinafter Linde, E Pluribus]; Linde, First Things First,

9 U. Balt. L. Rev. 379).

Justice Linde has concluded in both his judicial and extrajudicial

work that state courts are free to interpret a parallel provision of a state

constitution as providing less protection than the Federal Constitution:

The state argues, correctly, that diversity does not

necessarily mean that state constitutional guarantees always

are more stringent than decisions of the Supreme Court under

their federal counterparts. A state’s view of its own guarantee

may indeed be less stringent, in which case the state remains

bound to whatever is the contemporary federal rule. Or it may

be the same as the federal rule at the time of the state court’s

decision, which of course does not prevent that the state’s

guarantee will again differ when the United States Supreme

Court revises its interpretation of the federal counterpart. The

point is not that a state’s constitutional guarantees are more

or less protective in particular applications, but that they were

meant to be and remain genuine guarantees against misuse

of the state’s governmental powers, truly independent of the

rising and falling tides of federal case law both in method and

in specifics.

Kennedy, 666 P.2d at 1323. Stated differently,

The right question is not whether a state’s guarantee is

the same as or broader than its federal counterpart as

interpreted by the Supreme Court. The right question is what

the state’s guarantee means and how it applies to the case at

hand. The answer may turn out the same as it would under

federal law. The state’s law may prove to be more protective

than federal law. The state law also may be less protective. In

34

that case the court must go on to decide the claim under

federal law, assuming it has been raised.

Linde, E Pluribus, 18 Ga. L. Rev. at 179.

The Michigan Supreme Court reached the same conclusion in Sitz

v. Department of State Police, 506 N.W.2d 209, 216–17 (Mich. 1993). That

court’s discussion of the issue is worth quoting at length here:

[A]ppropriate analysis of our constitution does not begin from

the conclusive premise of a federal floor. Indeed, the fragile

foundation of the federal floor as a bulwark against arbitrary

action is clearly revealed when, as here, the federal floor falls

below minimum state protection. As a matter of simple logic,

because the texts were written at different times by different

people, the protections afforded may be greater, lesser, or the

same.

Id. at 217 (footnote omitted). The court continued,

The image of federal constitutional law as a “floor” in

state court litigation pervades most commentary on state

constitutional law. Commentators contend that in

adjudicating cases, state judges must not adopt state

constitutional rules which fall below this floor; courts may,

however, appeal to the relevant state constitution to establish

a higher “ceiling” of rights for individuals. . . .

Certainly, as a matter of federal law, state courts are

bound not to apply any rule which is inconsistent with

decisions of the Supreme Court; the Supremacy Clause of the

Federal Constitution clearly embodies this mandate. It would

be a mistake, however, to view federal law as a floor for state

constitutional analysis; principles of federalism prohibit the

Supreme Court from dictating the content of state law. In

other words, state courts are not required to incorporate

federally-created principles into their state constitutional

analysis; the only requirement is that in the event of an

irreconcilable conflict between federal law and state law

principles, the federal principles must prevail.

....

[S]uch courts must undertake an independent

determination of the merits of each claim based solely on

principles of state constitutional law. If the state court begins

its analysis with the view that the federal practice establishes

a “floor,” the state court is allowing a federal governmental

body—the United States Supreme Court—to define, at least in

part, rights guaranteed by the state constitution.

35

Id. at 217 n.12 (alterations in original) (quoting Earl M. Maltz, False

Prophet—Justice Brennan and the Theory of State Constitutional Law, 15

Hastings Const. L.Q. 429, 443–44 (1988)).

Other courts have reached the same conclusion. See State v. Oliver,

372 S.E.2d 256, 259 (Ga. Ct. App. 1988) (“If anything, the Georgia

Constitution is less protective than the Fifth Amendment, for it recognizes

an exception to the bar against double jeopardy when the first trial ends

in a mistrial.”); State v. Jackson, 503 S.E.2d 101, 103–04 (N.C. 1998)

(“Strictly speaking, however, a state may still construe a provision of its

constitution as providing less rights than are guaranteed by a parallel

federal provision.”); Alva State Bank & Tr. Co. v. Dayton, 755 P.2d 635, 638

(Okla. 1988) (per curiam) (recognizing that if the state constitution

provides less protection than federal law, then “the question must be

determined by federal law”); Ex parte Tucci, 859 S.W.2d 1, 32 n.34 (Tex.

1993) (Phillips, C.J., concurring) (“Literally read, this position makes no

logical sense. If our text was written at a different time by different people

with different concerns, then the protection it affords may be greater,

lesser, or the same as that provided by a different provision in the United

States Constitution.”); Hulit v. State, 982 S.W.2d 431, 436–37 (Tex. Crim.

App. 1998) (en banc) (“The Supremacy Clause means that, in practical

terms, persons will always be able to avail themselves of the greater right.

This is very important to litigants and their counsel, who are naturally and

properly result-oriented. But it does not mean that a court, faithfully

interpreting state laws, can only find in them protections that equal or

exceed federal laws.”); State v. Briggs, 199 P.3d 935, 942 (Utah 2008)

(recognizing state law may “provide a lesser level of protection,” in which

case the court addresses the federal claim).

36

I thus conclude this court has a duty to independently interpret the

Iowa Constitution. This court discharges that duty by looking to the text

of the document through the prism of our precedent, tradition, and

custom. This court’s interpretation of the Iowa Constitution may be the

same as the Supreme Court’s interpretation of a parallel provision of the

Federal Constitution. This court’s interpretation of the Iowa Constitution

may be different than the Supreme Court’s interpretation of a parallel

provision of the Federal Constitution. But this court’s interpretation of the

Iowa Constitution is not dictated by the Supreme Court’s precedents under

the incorporation doctrine of the Federal Constitution.

II.

“Metaphors in law are to be narrowly watched, for starting as devices

to liberate thought, they end often by enslaving it.” Berkey v. Third Ave.

Ry., 155 N.E. 58, 61 (N.Y. 1926). This has been true of the floor–ceiling

metaphor. “However useful that floor-ceiling metaphor may be, it obscures

the larger truth that the level of protection of rights under the state

constitutions can be the same as, higher than, or lower than that provided

by the federal constitution.” Malyon v. Pierce County, 935 P.2d 1272, 1281

n.30 (Wash. 1997) (en banc) (quoting Neil McCabe, The State and Federal

Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L. Rev. 49,

50 (1992)). The failure of the metaphor has caused this court to undertake

its interpretive function with a results-oriented approach that has created

distortions in Iowa legal doctrine. Cf. Tucci, 859 S.W.2d at 32 n.34 (stating

the recognition “that ‘an independent state judiciary may interpret its

fundamental law as affording less protection than our federal charter’ . . .

will enhance the possibility of principled state constitutional development”

(quoting id. at 13 (plurality opinion))).

37

As an example of how the metaphor changed doctrine, consider this

court’s treatment of the exclusionary rule. In Boyd v. United States and

Weeks v. United States, the Supreme Court held that evidence obtained in

violation of the Federal Constitution was inadmissible in a criminal

proceeding. Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 346

(1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 654–57,

81 S. Ct. 1684, 1691–92 (1961); Boyd v. United States, 116 U.S. 616, 638,

6 S. Ct. 524, 536–37 (1886), abrogations recognized by Fisher v. United

States, 425 U.S. 391, 407–09, 96 S. Ct. 1569, 1579–80 (1976). In State v.

Tonn, 195 Iowa 94, 102–03, 104–07, 191 N.W. 530, 534, 535–36 (1923),

abrogated by State v. Hagen, 258 Iowa 196, 203–05, 137 N.W.2d 895, 899–

900 (1965), as recognized in State v. Taylor, 260 Iowa 634, 641–42, 144

N.W.2d 289, 293–94 (1966), this court considered Boyd and Weeks and

declined to adopt the exclusionary rule as a remedy for the violation of the

Iowa Constitution. Tonn remained good law for decades. See, e.g., State

ex rel. Hanrahan v. Miller, 250 Iowa 1369, 1375, 98 N.W.2d 859, 863

(1959); State v. Gillam, 230 Iowa 1287, 1289, 300 N.W. 567, 568 (1941);

State v. Rowley, 216 Iowa 140, 145–46, 248 N.W. 340, 342–43 (1933);

State v. Lambertti, 204 Iowa 670, 672, 215 N.W. 752, 753 (1927); State v.

Wenks, 200 Iowa 669, 670, 202 N.W. 753, 753 (1925); McNamara v.

Utterback, 200 N.W. 699, 700 (Iowa 1924); Lucia v. Utterback, 197 Iowa

1181, 1186, 198 N.W. 626, 628 (1924); Foley v. Utterback, 196 Iowa 956,

958, 195 N.W. 721, 722 (1923) (per curiam); Joyner v. Utterback, 196 Iowa

1040, 1044, 195 N.W. 594, 596 (1923).

In 2000, in Cline, this court concluded Mapp had abrogated Tonn.

See 617 N.W.2d at 287 (“Iowa did not again have a state exclusionary rule

until compelled to do so by the United States Supreme Court’s decision in

Mapp.”). The Cline court reasoned the authority to deviate from federal

38

law was limited to providing greater protection than the Federal

Constitution. See id. at 284–85.

Cline’s conclusion that Mapp required this court to adopt the

exclusionary rule as a remedy for a violation of state constitutional law

was incorrect. Cline’s conclusion is predicated on a misunderstanding of

federal law. In Wolf v. Colorado, the Supreme Court held the principles

underlying the Fourth Amendment were “enforceable against the States

through the Due Process Clause.” 338 U.S. 25, 27–28, 69 S. Ct. 1359,

1361 (1949), overruled on other grounds by Mapp, 367 U.S. at 654–55, 81

S. Ct. at 1691. The Supreme Court specifically declined to require the

states to adopt the exclusionary rule as the remedy for a violation of the

Federal Due Process Clause. See id. at 33, 69 S. Ct. at 1364 (“We hold,

therefore, that in a prosecution in a State court for a State crime the

Fourteenth Amendment does not forbid the admission of evidence

obtained by an unreasonable search and seizure.”). Subsequently, in

Mapp, the Supreme Court overruled Wolf and held the required remedy for

a violation of the Fourteenth Amendment right recognized in Wolf was the

exclusion of unlawfully obtained evidence from a criminal proceeding.

It is surprising this court immediately moved away from Tonn after

Mapp without explicitly overruling Tonn. A majority of the court in Mapp

did not even support the conclusion that a violation of the Fourth

Amendment, standing alone, required exclusion of the evidence. Justice

Stewart expressed no view on the constitutional issue. Mapp, 367 U.S. at

672, 81 S. Ct. at 1701 (Stewart, J., concurring in the judgment) (“I express

no view as to the merits of the constitutional issue which the Court today

decides.”). Justice Black concluded the Fourth Amendment, standing

alone, compelled no right to the exclusion of evidence. Id. at 661–62, 81

S. Ct. at 1695 (Black, J., concurring) (“I am still not persuaded that the

39

Fourth Amendment, standing alone, would be enough to bar the

introduction into evidence against an accused of papers and effects seized

from him in violation of its commands.”). Instead, he found the remedy to

be required due to the interaction of the Fourth and Fifth Amendments.

Id. at 662, 81 S. Ct. at 1695; see also Collins, ___ U.S. at ___, 138 S. Ct. at

1677–80, 1677 nn.2–3 (discussing Mapp). Justice Harlan, joined by

Justices Frankfurter and Whitaker, dissented. Mapp, 367 U.S. at 678–80,

81 S. Ct. at 1704–05 (Harlan, J., dissenting) (“I would not impose upon the

States this federal exclusionary remedy. The reasons given by the majority

for now suddenly turning its back on Wolf seem to me notably

unconvincing.”).

Regardless of whether Mapp was rightly or wrongly decided, the

important point of the discussion is this: Wolf and Mapp both involved the

resolution of claims arising under the Fourteenth Amendment. Neither

case compelled any state court to reach a particular resolution—whether

less protective, more protective, or as protective—of any legal claim arising

under its own state constitution. Cline was thus incorrect in stating Mapp

abrogated Tonn and precluded this court from interpreting the state

constitution to provide less protection than the Federal Constitution.

While there may be reasons why this court would want to adopt the

exclusionary rule for violations of the Iowa Constitution, many of which

are discussed in Cline, it was incorrect to say Mapp compelled this court

to do so.

III.

This special concurrence is not intended as a call to arms to find

less or more protection of individual rights under the Iowa Constitution as

compared to the United States Constitution. Instead, it is a call to

40

determine the meaning of the Iowa Constitution without an interpretive

predisposition that the Iowa Constitution must, as a matter of law, be

interpreted to provide only greater protection than the United States

Constitution. See Linde, E Pluribus, 18 Ga. L. Rev. at 179; see also

Gaskins, 866 N.W.2d at 21 n.7 (Iowa 2015) (Appel, J., concurring specially)

(“This case makes the powerful point that independent state constitutional

law is neither conservative nor liberal. It simply preserves what the United

States Supreme Court has referred to as our ‘free and unfettered’ authority

in interpreting our state constitution.” (quoting Nat’l Tea Co., 309 U.S. at

557, 60 S. Ct. at 679)); King v. State, 797 N.W.2d 565, 571 (Iowa 2011)

(“[W]e reserve the right to apply the principles differently under the state

constitution compared to its federal counterpart.”). In this particular case,

I concur with my colleagues that neither the United States Constitution

nor the Iowa Constitution provides Brown with any relief and that her

conviction should be affirmed.

41

#17–0367, State v. Brown

CADY, Chief Justice (dissenting).

I respectfully dissent from the decision of the majority to continue

to address claims of pretextual traffic stops without considering the

subjective motives of the officer involved once probable cause is found.

Our law must, instead, prohibit pretextual traffic stops motivated by race

or any other classification, even when probable cause for a traffic violation

exists. They are offensive to the values of our constitution and abhorrent

to the concept of justice expected by our constitution. They are one of

many reasons to explain why our criminal justice system has

disproportionally affected African-Americans in our state and across the

nation. In turn, they have helped create disproportionate paths and

outcomes in life and continue to prolong inequality within a system of

governing built on achieving equality. None of this will change, however,

until our law governing this issue changes. Law, in every instance, must

first reflect our highest understanding and then pass that understanding

onto those people it affects and those who implement it. While a legal

requirement for officers to exclude race as a motivation for a stop may be

difficult to enforce, this difficulty should itself not deny its force and effect.

Law enforcement officers place their lives on the line every day to uphold

the law under the most difficult circumstances. They serve to protect the

people at all costs. They would strive to enforce this law too, driven by the

understanding that identifying and removing race as a motivation for a

stop will extend protections to people far beyond the moment. This change

would work to eliminate the unconscious origin of a pervasive source of

discrimination and allow us to better achieve the equality promised in life

by our constitution. The law must always serve as the means to achieve

this end.

42

The majority suggests our previous interpretations of article I,

section 8 of the Iowa Constitution to mirror the Fourth Amendment of the

United States Constitution warrants a parallel analysis of pretextual stops.

While I respect the wisdom and competency of the Supreme Court, we

should not adopt its analysis of this issue at the expense of the rights of

Iowa’s citizens and, in particular, the rights of our citizens of color. 7 The

Supreme Court’s interpretation of constitutional rights under the Federal

Constitution need not limit the rights provided to Iowans under the Iowa

Constitution. State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (“[T]he

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.”). We have routinely

recognized our authority in “independently construing provisions of the

Iowa Constitution that are nearly identical to the federal counterpart.”

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (“[W]e jealously protect this

court’s authority to follow an independent approach under our state

constitution.”).

Unfortunately, the majority has not utilized our independence in

deciding the present case. Instead, it ultimately follows the reasoning of

7[T]he dual sovereignty found in our federal system provides state courts

with freedom to formulate their own answers to issues such as what is an

unreasonable search and seizure, what offends due process, and what

violates equal protection. But with freedom comes responsibility. And

responsibility can seem overwhelming. One way to deal with this is to

refuse to make difficult choices and to rely on ready-made interpretations

from the U.S. Supreme Court. But this is not the way the federal system

was intended to work. State courts must resist the temptation to “escape

from freedom.” The ongoing American experiment in federalism deserves

nothing less.

Timothy P. O’Neill, Escape from Freedom: Why “Limited Lockstep” Betrays Our System of

Federalism, 48 J. Marshall L. Rev. 325, 333–34 (2014).

43

the United States Supreme Court’s decision in Whren v. United States, 517

U.S. 806, 819, 116 S. Ct. 1769, 1777 (1996).

The Whren doctrine is wrong largely because it gives police officers

too much authority, which has led to the misuse of that authority and has

allowed police officers to engage in fishing expeditions based on offensive

motivations. Whren recognized race-based law enforcement as

unconstitutional but held “[s]ubjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis.” Id. at 813, 116 S. Ct. at

1774. In effect, the decision masks an officer’s improper racial motivations

when making a traffic stop. Impure motivations are deemed justified by

finding a traffic violation was committed, however minor that violation may

be. For this reason, Whren has been widely criticized as legalizing racial

profiling in the context of traffic stops. See Devon W. Carbado, From

Stopping Black People to Killing Black People: The Fourth Amendment

Pathways to Police Violence, 105 Calif. L. Rev. 125, 129 (2017) [hereinafter

Carbado] (“[T]he Court’s legalization of racial profiling exposes African

Americans not only to the violence of ongoing police surveillance and

contact but also to the violence of serious bodily injury and death.”);

Darrell D. Jackson, Profiling the Police: Flipping 20 Years of Whren on Its

Head, 85 UMKC L. Rev. 671, 680 (2017) [hereinafter Jackson] (arguing the

Court’s discussion of racial profiling under the Fourth Amendment

“authorized the use of racial profiling for all criminal investigations”); Kevin

R. Johnson, How Racial Profiling in America Became the Law of the Land:

United States v. Brignoni-Ponce and Whren v. United States and the Need

for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1070 (2010) [hereinafter

Johnson] (“The Court’s refusal to consider the intent of police officers in

its Fourth Amendment analysis created a safe haven for racial profiling by

the police.”). In effect, the Supreme Court “balanced the need of law

44

enforcement officers to engage in [discriminatory traffic stops] to root out

crime against the right of minority communities to be free from race-based

practices.” I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind.

L.J. 835, 859 (2008) [hereinafter Capers] (discussing the consequences of

the court’s stop-and-frisk decision).

The majority’s suggestion that the proper constitutional basis for a

discrimination claim is the Equal Protection Clause neglects the significant

difficulties in bringing a successful equal protection claim. 8 Furthermore,

the Equal Protection Clause’s civil remedy does not provide relief to

defendants facing criminal penalties. United States v. Nichols, 512 F.3d

789, 795 (6th Cir. 2008) (barring the exclusionary rule as a remedy for an

equal protection claim following an alleged racially motivated stop),

overruled on other grounds as recognized in United States v. Buford, 632

F.3d 264, 269 (6th Cir. 2011). But see Terry v. Ohio, 392 U.S. 1, 12, 88

S. Ct. 1868, 1875 (1968) (stating that the exclusionary rule “is the only

effective deterrent to police misconduct in the criminal context[] and that

without it the constitutional guarantee against unreasonable searches and

seizures would be a mere ‘form of words’ ” (quoting Mapp v. Ohio, 367 U.S.

643, 648, 81 S. Ct. 1684, 1688 (1961))).

Even under an equal protection analysis, the ultimate issue is

whether the disparate treatment is reasonable. Yet, it is article I, section 8

of the Iowa Constitution and the Fourth Amendment to the United States

Constitution that specifically require all seizures by law enforcement to be

“reasonable.” Clearly, the text of the Search and Seizure Clauses support

8“On average, to take an equal protection claim to trial costs anywhere from

$45,000 up to $125,000. Since the average defendant’s income is approximately between

$23,000 and $60,000,” most avenues for such litigation are unavailable. Jackson, 85

UMKC L. Rev. at 680 (footnote omitted).

45

a reasonableness test, and it is not enough to brush the issue of racial

profiling off as only an equal protection claim. 9

The Whren decision “has greatly expanded the authority and power

of law enforcement officers, and that discretion has exacerbated problems

with racial profiling in law enforcement.” Johnson, 98 Geo. L.J. at 1076.

Many people of color feel racial profiling is endemic in current criminal

enforcement. Id. Amici curiae, in support of Brown, state pretextual traffic

stops

[a]ffect[] minorities disproportionately[;] they put People of

Color in reasonable fear for the bodily safety and even the lives

of themselves, their children, their loved ones and friends; and

they exacerbate and perpetuate the profound problem of racial

disparities in the criminal justice system and society.

Brief of ACLU of Iowa et al. as Amici Curiae Supporting Appellant at 10,

State v. Brown, ___ N.W.2d ___ (Iowa 2019) (No. 17–0367). Amici also

provide statistical data showing people of color, particularly African-

Americans, are stopped, cited, and arrested at higher rates than

Caucasian drivers throughout Iowa. Id. at 16–22 (finding nineteen percent

of traffic stops in Iowa City involved minority drivers, although they made

up only ten percent of the city’s drivers, and black drivers in Scott County

9Moreover,

[t]he Fourth Amendment . . . should be read as a protection of what it

means to be “of the people,” a limitation upon the ability of government to

infringe upon the right to equal citizenship, equal worth, and equal

autonomy in conducting searches and seizures. To be clear, I am not

suggesting that the Fourth Amendment should be read as including

causes of action based on the denial of equal protection, or as

incorporating equal protection jurisprudence. What I am suggesting is

that Fourth Amendment jurisprudence be guided by a commitment to

equal citizenship.

I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 74 (2009).

46

were stopped “nearly three times as often as white drivers”) These

disturbing trends are present nationwide. 10

Even more alarming are instances when “an ordinary traffic stop [is]

a gateway to extraordinary police violence.” Carbado, 105 Calif. L. Rev. at

150, 163–64 (noting the police killings of Michael Brown, Walter Scott, Eric

Garner, Alexia Christian, Sheneque Proctor, and Kendra James started as

ordinary police interactions).

The majority contends that Brown has not provided any new

arguments to justify departing from our holdings in State v. Griffin, 691

N.W.2d 734, 737 (Iowa 2005), and State v. Predka, 555 N.W.2d 202, 215–

16 (Iowa 1996). It also suggests that racial profiling concerns should not

inform our decision now because such concerns were present when we

previously addressed the issue of pretext stops and did not influence our

decisions. The very fact that racial profiling concerns persist should

inform our decision today. Time has given us the opportunity to

understand the importance of addressing these issues, not only for people

of color who are negatively impacted, but also for all citizens. 11

10The State of Missouri compiles an annual summary of traffic stop data. Att’y

Gen. Josh Hawley, 2017 Vehicle Stops Executive Summary, Mo. Att’y Gen.,

https://www.ago.mo.gov/home/vehicle-stops-report/2017-executive-summary# (last

visited May 17, 2019). The summary includes a disparity index calculated by dividing

the percentage of traffic stops of a particular group by the percentage of the driving

population constituted by the same group. Id. Data from 2017 revealed that “accounting

for their respective proportions of Missouri’s driving-age population, African-Americans

were stopped at a rate 85% higher than Whites.” Id.

Data from a similar 2017 Illinois report indicated nearly sixty percent of law

enforcement agencies reported minority drivers were stopped at a higher rate than were

Caucasian drivers. Alexander Weiss Consulting, LLC, Illinois Traffic and Pedestrian Stop

Study: Traffic Stop Analysis 4–5 (Ill. Dep’t of Transp. 2017).

11Conceptual writings and empirical research have suggested that Whites

experience both positive (i.e., privileges) and negative (i.e., costs)

consequences as a result of racism. . . . The phrase costs of racism to

Whites is defined as negative psychosocial consequences that Whites

experience as a result of the existence of racism. Examples of these costs

include guilt and shame, irrational fear of people of other races, distorted

47

Since Griffin and Predka, our understanding of justice and the rights

entailed in maintaining justice have evolved. Marginalized groups have

continued to mobilize so that their voices can be heard and their struggles

recognized. See, e.g., Kimberlé Williams Crenshaw et al., African Am.

Policy Forum, Say Her Name: Resisting Police Brutality Against Black

Women 2 (2015) (“Say Her Name sheds light on Black women’s experiences

of police violence in an effort to support a gender-inclusive approach to

racial justice that centers all Black lives equally.”). The efforts of

marginalized groups have been impactful in raising awareness and

altering society’s collective understanding of the role race plays in policing.

While it is unfortunate we did not recognize racial bias as a compelling

consideration when deciding Griffin and Predka, it would be a deliberate

oversight not to do so now. As a branch of government committed to

justice and protection of the rights of all Iowans, we should not be so

beholden to the past that we prevent ourselves from enacting justice in the

present. In fact, Iowa’s judiciary has consistently led the charge in

recognizing civil liberties through thoughtful consideration of our

constitution and application of the truth as derived by cultural

understandings, societal changes, and research. See Varnum v. Brien, 763

N.W.2d 862, 906 (Iowa 2009) (holding a statute prohibiting same-sex

couples from marriage unconstitutional six years before the United States

Supreme Court followed suit); Coger v. Nw. Union Packet Co., 37 Iowa 145,

159–60 (1873) (barring common carriers from discriminating on the basis

beliefs regarding race and racism, and limited exposure to people of

different races and cultures.

Lisa B. Spanieman et al., Psychosocial Costs of Racism to Whites: Exploring Patterns Through Cluster

Analysis, 53 J. of Counseling Psychol. 434, 434–35 (2006) (citations omitted) (analyzing the psychosocial

costs of racism to Whites through a study of 230 White students, aged 18–44, attending a Midwestern

university).

48

of race); Clark v. Bd. of Dirs., 24 Iowa 266, 277 (1868) (concluding the

segregation of schools based on race was unconstitutional eighty-six years

before the United States Supreme Court decided the same); In re Ralph, 1

Morris 1, 7 (1839) (recognizing the freedom of a former slave in the Iowa

Supreme Court’s premier case); Russell E. Lovell II, Shine on, You Bright

Radical Star: Clark v. Board of School Directors (of Muscatine)—the Iowa

Supreme Court’s Civil Rights Exceptionalism, 67 Drake L. Rev. 175, 192

(2019) (discussing, among others, a 1869 Iowa court decision that allowed

Arabella Mansfield to become the nation’s first female attorney).

Additionally, the passage of time since Whren, Griffin, and Predka

has not only given way to a greater understanding of implicit bias, 12 but

also a greater understanding of the adverse role it can play in the vast

discretionary decisions that occur throughout our criminal justice system.

This new understanding supports a new approach to confronting implicit

bias in all areas of our justice system, including racial profiling in traffic

offenses. Moreover, the time and place for this new approach fits Iowa.

The growing understanding of implicit bias within the last decade has

supported a branchwide initiative to educate all Iowa judges and judicial

branch employees on implicit bias. This initiative has provided training to

all judges and continues today. Thus, our response in Iowa has not been

to see the problem as too big or too hard to solve, but it has been to work

to find a solution through greater understanding. We should follow this

same approach today in response to the problem of racial profiling in traffic

offenses.

12“Implicitbiases are the plethora of fears, feelings, perceptions, and stereotypes

that lie deep within our subconscious, without our conscious permission or

acknowledgement.” Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury

Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and

Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 149 (2010).

49

Accordingly, the claim by the majority that a departure from Whren

“would create instability in the law, hinder law enforcement efforts,

weaken the strength of our adversarial system, and undermine public

confidence in the legal system” is misplaced. In truth, the reasons

expressed by the majority to follow Whren better describe the

consequences of the failure to depart from it.

The majority suggests relying on a reasonableness standard would

result in judicial overreach, unfairly focusing on an officer’s subjective

state of mind. Yet, the suggestion that requiring officers to justify their

objective reasoning would greatly hinder law enforcement is cause for

concern, particularly because officers should only be utilizing objective

reasoning when effectuating a traffic stop. It indicates there may be too

heavy a reliance on pretextual stops. There is no element inherent in

enforcing traffic laws that require a police officer to engage in subjective

reasoning before making a traffic stop. Adopting a reasonableness

standard would not hinder law enforcement’s ability to enforce traffic laws.

Instead, it encourages equality in the enforcement of these laws.

The problem with pretextual stops does not stem from officers’

enforcement of legitimate traffic laws; it comes from the disparate impact

resulting from an officer’s ability to make a stop motivated by subjective

reasons, many times racial, and then only needing to justify the stop by

citing a minor traffic violation. Or, as in the present case, it comes from

an officer initially choosing not to enforce a traffic law, then deciding to

make the stop based on subjective criteria, and then justifying the stop

based on earlier objective reasons. For all that is known in this case, race

could have been an unconscious motive operating in the mind of the officer

from the beginning. Yet, our law does not make the officer accountable for

the unconscious motive, but allows it to be left in the recesses of the mind

50

and washed over with other motives such as gang affiliation in this case.

But even this motive has its own implicit bias because there was no

evidence of a criminal record or any particular background to show the

affiliation was of a criminal nature. Gang affiliation can exist in

neighborhoods for reasons independent of criminal activity and when

broadly used as a motivation for a stop can have the same effects as using

race. 13

This permissible use of discretion contributes to inequality in the

enforcement of traffic laws and subsequent prosecutions. In other cases,

officers stop drivers not because of known gang affiliation but because of

the color of their skin or their appearance, the neighborhood they are

driving in, or any number of impermissible factors. These people are

subjected to police stops, although others with different affiliations, skin

color, or neighborhoods, committing similar minor traffic offenses are not.

This type of policing results in a higher volume of violations found. In the

many instances in which no wrongdoing is discovered, those subjected to

the pretextual stops are left feeling targeted, unsettled, and apprehensive

of law enforcement. 14 The “protections meant to curtail law enforcement’s

abuse of authority during traffic stops” cited by the majority do not address

13When applied to “gangs”, risk analyses typically take the form of social

profiling. This involves constructing a matrix of variables and matching individuals to the

variables described in the gang matrix. Such processes tend to be descriptive and do little

to provide a basis for understanding why and how specific groups of young people

experience problems or find meaning in their lives. . . . [T]here is a strong correlation

between poverty and crime, yet all poor people do not become engaged in criminal activity;

nor do all ‘criminals’ originate from poor backgrounds. The same applies to gang

membership and gang activities.

Rob White, Disputed Definitions and Fluid Identities: The Limitations of Social Profiling

in Relation to Ethnic Youth Gangs, 8 Youth Justice 149, 157 (2008) (citation omitted).

14“For these target groups, the perception is that being black or Hispanic alone

carries a penalty: the taint of suspicion, the risk of a traffic stop, the risk of a canine sniff,

the risk of a search.” Capers, 83 Ind. L.J. at 849.

51

the disparity in making traffic stops and do nothing to address the problem

of racial profiling.

By placing a reasonableness component on the pretext, police will

still be able to use minor traffic stops to investigate reasonable suspicion

of other criminal activity, but the practice of pretextual stops unrelated to

specific and articulable facts of criminal activity will be significantly

reduced. This approach strikes the balance needed to advance the

interests of all in our society.

The majority suggests that the reasonable-officer standard would

place an undue burden on law enforcement. In criticizing the “mythical

reasonable officer,” the majority ignores the fact that a reasonable-person

standard has been routinely applied within the field of search and seizure

and has not crippled law enforcement’s ability to do their jobs. See, e.g.,

Terry, 392 U.S. at 30, 88 S. Ct. at 1884 (applying a reasonableness

standard to analysis of stop-and-frisk situations).

Finally, unlike the majority, I do not believe that departing from

Whren would weaken our adversarial system or undermine public

confidence. Just the opposite is true. Applying a reasonableness standard

would enhance the legitimacy of traffic stops and resulting prosecutions.

Departing from Whren would demonstrate this court’s refusal to provide a

safe harbor for implicit biases to thrive. Employing a standard that

demands fair and unbiased stops could also help to restore trust in law

enforcement amongst disillusioned demographics. 15

15In 2017, a nationwide survey indicated confidence in police had risen to fifty-

seven percent after a downward slope in 2014 and a record-tying low of fifty-two percent

in 2015. Jim Norman, Confidence in Police Back at Historical Average, Gallup (July 10,

2017), https://news.gallup.com/poll/213869/confidence-police-back-historical-

average.aspx [https://perma.cc/5BGE-JH34]. However, these overall trends disguise

significant drops across several demographics. Id.

Though the overall numbers have rebounded, the years of national turmoil

have only deepened the divide in the confidence that Americans of different

52

In effect, the majority concludes that our inability to control every

variable leading to disparate enforcement means we should avoid

addressing the issue of pretextual stops altogether. I disagree. The factors

leading to disparate enforcement may be numerous, but the vastness of

the problem emphasizes the necessity of our attention and in no way

absolves us from evaluating the constitutional issue presented in this

case. The difficulties in addressing this issue cannot excuse its

continuation.

The majority remains hopeful that the employment of technology,

such as police body cams and cell phone videos, will help monitor racial

profiling. Furthermore, the majority quotes State v. Lopez for the

proposition that “[t]he more evidence that a detention was motivated by

police suspicions unrelated to the traffic offense, the less credible the

officer’s assertion that the traffic offense occurred.” 873 P.2d 1127, 1138–

39 (Utah 1994). Yet, under Whren, the consequences remain the same no

matter whether the officer was racially motivated or whether video footage

caught the encounter as long as a traffic offense occurred. Thus, people

of color are still left with little protection against subjective enforcement of

the law.

Current solutions to the problem of pretextual stops may not be

perfect. 16 However, they are a profound step in the right direction. There

ages, ethnicities and political beliefs say they have in the police. The loss

of confidence is most apparent among Hispanics, liberals and those

younger than age 35.

Id. Confidence rates also dropped among Black citizens, moderates, and Democrats. Id.

16It

has been suggested the value of the “would have” test is limited to situations

when police officers admit to using subjective motivations. Margaret M. Lawton, The

Road to Whren and Beyond: Does the “Would Have” Test Work?, 57 DePaul L. Rev. 917,

918–19 (2008). Additionally, despite adopting the test, Washington courts may be

reluctant to find that a police officer is lying about their motivations or “have difficulty

discerning pretextual behavior without an admission.” Id. at 919.

53

is value in providing a constitutionally sound standard for defendants to

challenge police stops motivated by impermissible considerations. It

reinforces and legitimizes the principle “that the Constitution prohibits

selective enforcement of the law based on considerations such as race.”

Whren, 517 U.S. at 813, 116 S. Ct. at 1774. Moreover, it provides

defendants with the opportunity to meaningfully appeal adverse decisions,

an avenue effectively closed to them now. This is not only beneficial for

defendants but to our court system and the development of our caselaw.

It signals to law enforcement and courts that the use of implicit bias must

be acknowledged and curtailed.

The majority’s suggestion that the proposed solution will not achieve

the desired result because an officer who engages in racial profiling is likely

to be untruthful about it is off the mark. It neglects what might be the

most important aspect of this case and this issue. Police officers, like the

rest of us, have implicit biases they might not recognize. Simply acting on

these biases does not indicate an officer’s propensity to be untruthful. We

should have more faith in our law enforcement and give them the

opportunity to recognize their biases so that they can acknowledge and

limit acting on them. For example, officers should take the opportunity to

review the statistical data from their stops and analyze whether it reveals

disproportionate enforcement. Furthermore, law enforcement agencies

should invest in implicit-bias training so that all officers are aware of it.

These types of changes can be enacted even in the absence of judicial

action. 17 As it stands, the majority makes no move toward eliminating a

17It has been suggested that historically marginalized groups should utilize

profiling as a tool themselves “to identify, surveil, and if necessary, instigate proceedings

against problem police officers.” Jackson, 85 UMKC L. Rev. at 688. “[D]eveloping an

offender profile[] is to present information that describes the characteristics of a probable

offender and aid[s] in the analysis of the data for predicting future offenses and/or

victims.” Id. at 685; see also Linh Ta, Des Moines Police Know They’re Biased. Here’s

54

practice that we recognize as unconstitutionally discriminatory. If our law

projects that this practice is wrong, we can properly assume officers have

enough respect for the law to comply with it. We would take a big step

forward today if we were to use article I, section 8 of our constitution to at

least say it is illegal for a police officer to use race or any other protected

classification as the motivating factor to make a stop for a minor traffic

violation, instead of following the Whren doctrine.

Judges have always been called upon to understand each issue that

comes into the court from both perspectives and to then use this dual

vision to build a model that solves the problem. The issues of racial

profiling and implicit bias presented in this case are uniquely complex, but

they can only be solved by understanding this complexity and by building

a standard that projects this understanding to all.

How They’re Trying to Mitigate It, Des Moines Register (Aug. 13, 2017, 4:04 PM),

https://www.desmoinesregister.com/story/news/crime-and-courts/2017/08/13/des-

moines-police-know-theyre-biased-heres-how-theyre-trying-mitigate-it/311895001/.

Another proposal supports harsher penalties for officers who commit perjury

when testifying about an incident. Capers, 83 Ind. L.J. at 873. Such officers “should be

investigated and prosecuted to the same extent a civilian witness would be.” Id.

55

#17–0367, State v. Brown

APPEL, Justice (dissenting).

Under article I, section 8 of the Iowa Constitution, can a police officer

use a common minor traffic violation as an after-the-fact pretext to seize a

vehicle and its passengers when the actual reason for the stop was

constitutionally inadequate? Today’s majority says yes. I say NO!

I. Summary.

History demonstrates that one of the fundamental purposes of

search and seizure law is to cabin the discretion of police officers in

choosing whom to subject to search and seizure. Generalized discretion

in the hands of a law enforcement official has been anathema to the search

and seizure provisions of both the Fourth Amendment and article I, section

8 of the Iowa Constitution. No case considering search and seizure issues

can be consistent with the history and purpose of the constitutional

provisions without carefully considering whether the discretion of police

officers is so unbridled that it vests in them power equivalent to the hated

general authority to search.

As will be seen below, in my view, law enforcement officers have what

amounts to general authority to seize drivers on the open road due to the

density of traffic regulations and the pervasiveness of minor violations.

That means that the traditional limitations to search and seize do not

apply on the open road and the risk of arbitrary enforcement is great. As

a result, consistent with the history and purpose of search and seizure

law, there must be constitutional restraints on the generalized discretion

in order to protect citizens from arbitrary actions of law enforcement.

For many years, our legal tradition frowned on pretextual searches

as violating search and seizure principles. Early federal cases questioned

the validity of pretextual searches. And up until the 1990s, the trend

56

among state courts was to disapprove pretextual searches as violating

search and seizure. Iowa caselaw was part of the general trend for

decades.

All that changed when the Supreme Court announced its decision

in Whren v. United States, 517 U.S. 806, 811–16, 116 S. Ct. 1769, 1773–

76 (1996). As will be explored below, Whren departed from the trend in

state courts and made a flawed turn in the development of search and

seizure law. In my view, the wrong turn made in Whren should not be

emulated by this court in its interpretation of the Iowa Constitution.

As a state supreme court, we are not bound by Whren but should

only consider it to the degree it is persuasive. It is well established in other

states and in Iowa that the mere fact there is a similarity in the language

of the Fourth Amendment and article I, section 8 of the Iowa Constitution

does not mean that federal precedent has any more power beyond its

ability to persuade. I find Whren unpersuasive because of its failure to

limit general police discretion to engage in roadway seizures. In light of its

unconvincing rationale and the weakness of existing authority, the

doctrine of stare decisis does not excuse us from considering the validity

of pretextual stops under the Iowa Constitution.

The decision in this case is bad law. The approach of the majority

fails to recognize the history of search and seizure law and the importance

of curbing generalized law enforcement discretion, fails to recognize that

law enforcement in practice has general authority to stop vehicles on the

open road due to the pervasiveness of regulations, fails to recognize or deal

with the problems of implicit bias, fails to recognize the reality of racial

profiling, fails to recognize the shortcomings of alternative remedies, and

fails to recognize the constitutional harms caused by generalized seizures

on the open road.

57

Because of the importance of the issue, an in-depth analysis of the

history of search and seizure law, the doctrinal developments in the law,

and the impact on the law in light of current realities is appropriate. We

simply should not bless pretextual stops by law enforcement without a

thorough understanding of where the law has been, how it has evolved,

and how it might develop.

II. Factual Background and Proceedings.

A. Initial Proceedings. On November 23, 2015, the State filed a

trial information charging Scottize Brown with a second offense of

operating a motor vehicle while intoxicated, an aggravated misdemeanor,

in violation of Iowa Code section 321J.2(2)(b) (2016). Brown pled not

guilty. She subsequently filed a motion to suppress, claiming she was

unlawfully subjected to a pretextual stop. In her motion to suppress,

Brown claimed that the stop violated both the Fourth Amendment of the

United States Constitution and article I, section 8 of the Iowa Constitution.

B. Evidence Presented at the Motion to Suppress Hearing. At

the motion to suppress hearing, Waterloo police officer Justin Brandt

testified that he observed a Lincoln Navigator cross the centerline while

driving through an intersection on a yellow light in Waterloo, Iowa, in the

early morning hours. Officer Brandt told the court he followed the vehicle

and “ended up running the license plate on it.” He determined that the

registered owner of the vehicle had a valid license. Officer Brandt testified

that he then “got curious” and, “having the time to do so,” opened up a

database and “somewhere in that database [he] ended up seeing that there

is some kind of connection with gang activity or something with the

registered owner.” Officer Brandt further testified that he noticed that one

of the two license plate lamps on the vehicle was not operating. According

to Brandt, he “wasn’t even going to stop” the car for the traffic violations

58

until he ran the plate and learned of the gang affiliation of the owner. Upon

learning of the gang affiliation, he wanted to “poke around and see what’s

up.”

Officer Brandt told the court he then followed the vehicle for a couple

of blocks, after which he activated his emergency lights to conduct a traffic

stop. The vehicle continued on, however, and Officer Brandt initiated his

siren. At that point, the vehicle stopped.

Officer Brandt approached the vehicle and obtained identification

from Brown as the driver of the vehicle. Officer Brandt testified that he

could smell alcohol and saw an open can of beer in the front cup holder.

According to Officer Brandt, Brown admitted to drinking earlier but said

the open can was not hers. Officer Brandt determined that Brown was

driving with a suspended license and transported her to the police station.

At the police station, Officer Brandt stated, Brown failed several field

sobriety tests and refused to submit to a breath test.

C. District Court Ruling on the Motion to Suppress. The district

court denied Brown’s motion to suppress. It noted that Officer Brandt first

observed the vehicle at a red light where it made an improper turn. The

district court found that after observing the improper turn, Officer Brandt

determined that the registered owner was associated with local gang

activity. It further found that Officer Brandt followed the vehicle to another

red light, where he observed one of the vehicle’s license plate lights was

not properly functioning. According to the district court, it was apparent

that Officer Brandt would not have made the stop absent the gang

affiliation of the registered owner.

The district court held that notwithstanding the subjective

motivation of Officer Brandt, he had observed a traffic infraction—the

improper turn—as well as an equipment violation—the license plate light.

59

It held that because there were objective violations, the subjective motive

of Officer Brandt did not matter. In support of its legal conclusion, the

district court cited State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996),

and State v. Harrison, 846 N.W.2d 362 (Iowa 2014). As a result, the district

court denied the motion to suppress. 18

The matter proceeded to trial on the minutes of testimony. The

district court found Brown guilty of operating a motor vehicle while

intoxicated, second offense. Brown appealed.

D. Issues on Appeal. On appeal, Brown argues that the district

court erred by failing to suppress the evidence arising from the seizure of

the automobile she was driving. Brown claims that the stop was not, in

fact, initiated as a result of a minor traffic infraction but was pretextual in

nature and that the real reason for the stop was constitutionally

insufficient. On appeal, Brown makes her claim solely under article I,

section 8 of the Iowa Constitution.

III. Standard of Review.

This court reviews claims of unconstitutional searches and seizures

de novo. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). In engaging in

de novo review, “[w]e independently evaluate the totality of the

circumstances found in the record, including the evidence introduced at

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

18The district court did not cite either the Fourth Amendment of the United States

Constitution or article I, section 8 of the Iowa Constitution. Under these circumstances,

claims under both Constitutions are preserved. See Lamasters v. State, 821 N.W.2d 856,

864 (Iowa 2012) (“If the court’s ruling indicates that the court considered the issue and

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

has been preserved.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)); cf.

State v. Childs, 898 N.W.2d 177, 191 (Iowa 2017) (Hecht, J., dissenting) (“ ‘[W]hen there

are parallel constitutional provisions in the Federal and State Constitutions and a party

does not indicate the specific constitutional basis, we regard both federal and state

constitutional claims as preserved,’ even if the district court did not rule on both.”

(quoting State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015))).

60

775, 780 (Iowa 2010). Here, however, Brown waived her right to a jury

trial and pled guilty. As a result, there is no trial court evidentiary record

to review.

IV. Overview of Search and Seizure Law.

A. Historical Overview of Relevant Search and Seizure Law.

1. Hatred of general warrants and writs of assistance animates the

American Revolution. In several recent cases, this court explored the

history of search and seizure law under the Federal and Iowa

Constitutions. See, e.g., Godfrey v. State, 898 N.W.2d 844, 866–67 (Iowa

2017); State v. Short, 851 N.W.2d 474, 481–84 (Iowa 2014); State v.

Baldon, 829 N.W.2d 785, 805–09 (Iowa 2013) (Appel, J., specially

concurring); State v. Ochoa, 792 N.W.2d 260, 269–75 (Iowa 2010). A brief

summary of this history provides the context for consideration of the

questions posed in this case.

One of the great advancements in English law during the eighteenth

century was the development and clear articulation of judicial protection

of individuals from arbitrary, government-sponsored search and seizure.

The key cases center around the efforts of Lord Halifax’s government to

suppress dissent. Government agents generally ransacked residences and

premises looking for telltale signs of involvement in the publication of a

scurrilous antigovernment broadside. Thomas K. Clancy, The Fourth

Amendment: Its History and Interpretation § 2.2.3.2, at 36 (2008); Andrew

E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and

Seizure, 1789–1868, at 20 (2006). In a series of cases, the English courts

held that such searches without probable cause were illegal and imposed

hefty fines against the perpetrators. Entick v. Carrington (1765) 95 Eng.

Rep. 807, 818; 2 Wils. K.B. 275, 292; Wilkes v. Wood (1763) 98 Eng. Rep.

61

489, 498–99; Lofft 1, 18–19; Huckle v. Money (1763) 95 Eng. Rep. 768,

768–69; 2 Wils. K.B. 205, 205–07.

The forces of resistance to generalized governmental searches

traveled in the boats over to the New World and landed in the infamous

Paxton’s Case. See Tracey Maclin, The Complexity of the Fourth

Amendment: A Historical Review, 77 B.U. L. Rev. 925, 946 (1997)

[hereinafter Maclin, The Complexity of the Fourth Amendment]. In Paxton’s

Case, James Otis Jr., a prominent Massachusetts lawyer and powerful

orator, bitterly attacked the Crown’s provincial agents for engaging in

arbitrary searches under generalized writs of assistance that did not name

a specific individual but authorized the Crown’s minions to search in their

discretion for evidence of evasion of British mercantile policy. William J.

Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602–1791,

at 377–82, 385–95 (2009) [hereinafter Cuddihy]; Maclin, The Complexity of

the Fourth Amendment, 77 B.U. L. Rev. at 946.

Otis lost the case, but the powerful blows struck by his forceful

argument were not lost on John Adams, who declared, “Then and there

the Child Independence was born.” Jacob W. Landynski, Search and

Seizure and the Supreme Court: A Study in Constitutional Interpretation 37

(1966) (quoting Letter from John Adams to William Tudor (Mar. 29, 1817),

in 10 The Works of John Adams 244, 247–48 (Charles Francis Adams ed.,

Bos., Little, Brown & Co. 1856)). Adams remembered the lessons of

Paxton’s Case when he drafted the Massachusetts Constitution of 1780.

Leonard W. Levy, Origins of the Bill of Rights 158 (1999); 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, 91 (Patrick T. Conley & John P. Kaminski eds.,

1992). In the Massachusetts Constitution, Adams included a search and

62

seizure provision that limited the authority of the government to engage in

searches without a particularized warrant. Thomas Y. Davies, Recovering

the Original Fourth Amendment, 98 Mich. L. Rev. 547, 684–85 (1999)

[hereinafter Davies]. But cf. Tracey Maclin, Race and the Fourth

Amendment, 51 Vand. L. Rev. 333, 333–36 (1998) [hereinafter Maclin,

Race and the Fourth Amendment] (discussing arbitrary and discriminatory

search and seizure practices of slave patrols in the colonial American

South). See generally Akhil Reed Amar, Fourth Amendment First Principles,

107 Harv. L. Rev. 757, 779–80 & n.87 (1994) (discussing historical

predicate for the particularized-warrant requirement in American law).

The precedent set in the Massachusetts Constitution, and other

state constitutions enacted shortly thereafter, had a dramatic influence on

the development of the United States Constitution. See Short, 851 N.W.2d

at 481–82. The United States Constitution was ratified only upon the

assurance by James Madison and others that a series of amendments

known as the Bill of Rights would be adopted after enactment. In drafting

the Bill of Rights, Madison looked to state constitutional tradition in

developing what became the Fourth Amendment to the United States

Constitution. William J. Brennan, Jr., State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977); see

Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What

Individual Rights Are Really Deeply Rooted in American History and

Tradition?, 85 S. Cal. L. Rev. 1451, 1454–55, 1491–92 (2012) [hereinafter

Calabresi et al.]. Indeed, all of the Bill of Rights provisions had

predecessors in prior state constitutions. See Calabresi et al., 85 S. Cal.

L. Rev. at 1454–55, 1491–92. The notion of a bill of rights was not a

concept developed by the federal framers and then copied by the states,

63

but was a concept embraced by state constitutions and later adopted by

the federal framers. Short, 851 N.W.2d at 481–82.

Iowa adopted two state constitutions: the first in 1846 and the

second in 1857. See id. at 482. The search and seizure language adopted

in article I, section 8 of both the Iowa Constitution of 1846 and of 1857 is

nearly identical to the Federal Constitution except for the use of a

semicolon instead of a comma between the reasonableness clause and the

warrant clause. Compare U.S. Const. amend. IV, with Iowa Const. art. I,

§ 8. The language in the Federal Constitution was largely derived from

eight state constitutions that had search and seizure provisions prior to

the adoption of the federal document. See Bernard Schwartz, The Great

Rights of Mankind: A History of the American Bill of Rights 88 (expanded

ed. 1992).

Although the language in the Fourth Amendment and article I,

section 8 is similar. there is no reason for a state court to be “bound” by

federal interpretations of the Fourth Amendment. As noted by Judge

Jeffrey Sutton, “There is no reason to think, as an interpretive matter, that

constitutional guarantees . . . , even guarantees with the same or similar

words, must be construed the same.” Short, 851 N.W.2d at 487 (quoting

Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional Law,

59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter Sutton]). We have

explained the principles of independent interpretation of the Iowa

Constitution on several occasions. See, e.g., id. at 481–92; Baldon, 829

N.W.2d at 803–34; State v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011);

Ochoa, 792 N.W.2d at 264–67.

We are not alone. See, e.g., Wright v. State, 108 N.E.3d 307, 315

(Ind. 2018) (explaining that the state constitution demands independent

analysis in light of its uniqueness); State v. Gerschoffer, 763 N.E.2d 960,

64

965 (Ind. 2002) (“The Indiana Constitution has unique vitality, even where

its words parallel federal language.”); People v. Barber, 46 N.E.2d 329, 331

(N.Y. 1943) (pointing out that the 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) (noting that the search and seizure provision of the Wyoming

Constitution, which parallels the Fourth Amendment, “constitutes a

separate and independent source of protection of the rights of Wyoming

citizens”). See generally Baldon, 829 N.W.2d at 824.

2. Search and seizure concepts: Requirement of justification

supporting particular searches and protection of the public against arbitrary

government action. The search and seizure provisions of the Federal

Constitution and the Iowa Constitution perform two functions. First, the

search and seizure provisions are designed to ensure that government

searches and seizures are justified. The justification ordinarily requires

the state to establish to the satisfaction of a neutral magistrate that the

proposed search or seizure is supported by probable cause and that the

search is limited both with respect to its scope and purpose.

65

Second, however, the search and seizure provisions are designed to

ensure that the government does not engage in the arbitrary exercise of

power. For example, in Entick, Judge Pratt bristled at the notion that the

Crown could willy-nilly engage in searches based on common activity. 95

Eng. Rep. at 818; 2 Wils. K.B. at 292. Judge Pratt acknowledged that

although prior caselaw said that a man may be “punishable for having a

libel in his private custody,” “half the kingdom would be guilty . . . if libels

may be searched for and seized by whomsoever and wheresoever the

Secretary of State thinks fit.” Id.

Just as in Wilkes, Entick, and other cases, the attacks against writs

of assistance in America prior to the American Revolution were also based

on the potential of arbitrary enforcement of broadly framed, general power.

As noted by the Supreme Court in one of its first Fourth Amendment cases,

James Otis declared the writs of assistance were

“the worst instrument of arbitrary power, the most destructive

of English liberty and the fundamental principles of law, that

ever was found in an English law book;” since they placed “the

liberty of every man in the hands of every petty officer.”

Boyd v. United States, 116 U.S. 616, 625, 6 S. Ct. 524, 529 (1886) (quoting

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest

upon the Legislative Power of the States of the American Union 368 (Bos.,

Little, Brown & Co., 5th ed. 1883)), abrogations on other grounds

recognized by Fisher v. United States, 425 U.S. 391, 407–09, 96 S. Ct.

1569, 1579–80 (1976). “[C]olonists who battled the British did not trust

or defer to the judgments of British customs officials” in furthering what

the British, no doubt, thought was the critically important public policy of

financing the cost of the public defense of the colonists, through arbitrary

search and seizure of untaxed goods authorized by open-ended writs. See

Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. &

66

Mary L. Rev. 197, 248 (1993) [hereinafter Maclin, The Central Meaning of

the Fourth Amendment].

Indeed, just as, according to Entick, half the kingdom would be

subject to arbitrary search and seizure because of the prevalence of private

libel, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292, smuggling to avoid taxes in

the colonies was extremely common, Barbara C. Salken, The General

Warrant of the Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,

255–56 (1989). It is not surprising that, in the New World, warnings arose

about unfettered discretion to search and seize. In words echoing Judge

Pratt, Mercy Otis Warren, James Otis’s daughter, cautioned that without

a Bill of Rights, the proposed Federal Constitution would tolerate “the

insolence of any petty revenue officer to enter our houses, search, insult,

and seize at pleasure.” Paul Finkelman, The Ten Amendments as a

Declaration of Rights, 16 S. Ill. U. L.J. 351, 392 (1992) [hereinafter

Finkelman] (quoting A Columbian Patriot (Mercy Otis Warren),

Observations on the New Constitution, and on the Federal and State

Conventions (1788), reprinted in 16 The Documentary History of the

Ratification of the Constitution 272, 281 (Merrill Jensen ed., 1976)). In

short, the “general warrants known as writs of assistance [that] . . .

bedeviled the colonists” remained “[v]ivid in the memory of the newly

independent Americans.” Stanford v. Texas, 379 U.S. 476, 481, 85 S. Ct.

506, 510 (1965).

In the words of Professor Anthony Amsterdam in his often cited and

unsurpassed article on the Fourth Amendment, search and seizure law

protects against not only unjustified searches but also arbitrary searches

and seizures “conducted at the discretion of executive officials, who may

act despotically and capriciously in the exercise of the power to search and

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seize.” Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58

Minn. L. Rev. 349, 411 (1974) [hereinafter Amsterdam]. Professor

Amsterdam went on to explain,

A paramount purpose of the fourth amendment is to prohibit

arbitrary searches and seizures as well as unjustified

searches and seizures. . . . Arbitrary searches and seizures

are “unreasonable” searches and seizures; ruleless searches

and seizures practiced at the varying and unguided discretion

of thousands of individual peace officers are arbitrary

searches and seizures; therefore, ruleless searches and

seizures are “unreasonable” searches and seizures.

Id. at 417. Before the innovations in search and seizure doctrine in the

Burger–Rehnquist–Roberts era, the Supreme Court repeatedly recognized

that the constitutional limitations on search and seizure protect people

against arbitrary government acts. See, e.g., Camara v. Mun. Ct. of S.F.,

387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967); see also United States v.

Ortiz, 422 U.S. 891, 895, 95 S. Ct. 2585, 2588 (1975); United States v.

Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2579 (1975).

By controlling otherwise unfettered search and seizure discretion of

law enforcement, the Fourth Amendment, from the get-go, protected

unpopular minorities against majoritarian government institutions. For

example, Madison—the author of the Fourth Amendment—was well aware

of the general searches of the homes of unpopular minority Philadelphia

Quakers whose pacifist inclinations were thought to be evidence that they

were British spies. See Cuddihy at 618–19; Anthony C. Thompson,

Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U.

L. Rev. 956, 996 (1999) [hereinafter Thompson]. Although African-

Americans were not afforded equal status by the federal government until

at least the passage of the Reconstruction Amendments, the notion that

the Fourth Amendment was designed to protect powerless minorities

seems to have been well established. See Thompson, 74 N.Y.U. L. Rev. at

68

996–98. As noted by prominent legal scholar John Hart Ely, the Fourth

Amendment is “concerned with avoiding indefensible inequities in

treatment” as it may be seen as a “harbinger of the Equal Protection

Clause.” John Hart Ely, Democracy and Distrust: A Theory of Judicial

Review 97 (1980).

In light of the above history, Chief Justice Warren Burger, then

serving on the D.C. Circuit Court of Appeals, accurately observed that the

search and seizure provisions of the Fourth Amendment reflect “deeply

rooted national skepticism toward police and indeed all public authority,”

“a sort of briny irreverence toward officials.” Warren E. Burger, Who Will

Watch the Watchman?, 14 Am. U. L. Rev. 1, 1, 4 (1964) [hereinafter Burger]

(quoting Edmond Cahn, The Predicament of Democratic Man 24 (1961)

[hereinafter Cahn]). The founders “viewed official power with an almost

paranoid suspicion; and they believed that suspicion justified by power’s

inherent nature.” Donald Dripps, Living With Leon, 95 Yale L.J. 906, 938

(1986). Professor Amsterdam, after reviewing the history of the Fourth

Amendment, wrote that “[t]he Bill of Rights in general and the fourth

amendment in particular are profoundly anti-government documents.”

Amsterdam, 58 Minn. L. Rev. at 353. Professor Tracey Maclin agrees,

noting that “the central meaning of the Fourth Amendment is distrust of

police power and discretion.” Maclin, The Central Meaning of the Fourth

Amendment, 35 Wm. & Mary L. Rev. at 201.

The Supreme Court reflected the attitude of the Revolutionary Era

when it observed in McDonald v. United States that “[p]ower is a heady

thing; and history shows that the police acting on their own cannot be

trusted.” 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948). Similarly, in

Trupiano v. United States, the Supreme Court stated that “sad experience

had taught [the people of the United States] that the right to search and

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seize should not be left to the mere discretion of the police.” 334 U.S. 699,

709–10, 68 S. Ct. 1229, 1234 (1948), overruled in part on other grounds by

United States v. Rabinowitz, 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950),

overruled by Chimel v. California, 395 U.S. 752, 766–68, 89 S. Ct. 2034,

2041–43 (1969). In Johnson v. United States, the Supreme Court

emphasized that the Constitution places individual interests in privacy,

personal security, and human dignity on a higher plane than society’s

interest in catching criminals. See 333 U.S. 10, 13–14, 68 S. Ct. 367, 368–

69 (1948).

While article I, section 8 of the Iowa Constitution was adopted

several decades after the Federal Constitution and the Bill of Rights, the

Iowa constitutional provision was also designed to protect individuals

against the unjustified and arbitrary exercise of government power.

Indeed, the placement of the Iowa Bill of Rights in the very first article of

the Iowa Constitution emphasizes its constitutional importance. See

Baldwin v. City of Estherville, 915 N.W.2d 259, 285 (Iowa 2018) (Appel, J.,

dissenting). Further, article I, section 1 of the Iowa Constitution, the

prelude to all other provisions of article I, emphasizes the “inalienable”

rights of Iowans. Iowa Const. art. I, § 1; see Baldwin, 915 N.W.2d at 285.

According to George Ells, chair of the Committee on the Preamble and Bill

of Rights of the 1857 Iowa Constitutional Convention, our Bill of Rights

would enlarge, and not curtail[,] the rights of the people . . .

[and] put upon record every guarantee that could be

legitimately placed there in order that Iowa . . . [would] 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) [hereinafter The Debates], https://

www.statelibraryofiowa.org/services/collections/law-library/iaconst. See

generally Short, 851 N.W.2d at 482–83 (discussing development of Iowa’s

70

Bill of Rights). If the Fourth Amendment is to be read with a “briny

irreverence” toward government power, Burger, 14 Am. U. L. Rev. at 4

(quoting Cahn at 24), the approach applies with equal if not greater force

to article I, section 8 of the Iowa Constitution.

B. Dynamic Development of State and Federal Search and

Seizure Doctrine.

1. Federal doctrine: Abandonment of warrant-preference approach in

favor of open-ended “reasonableness.” Over the years, the United States

Supreme Court has struggled to develop a coherent body of law under the

Fourth Amendment. See generally, e.g., Coolidge v. New Hampshire, 403

U.S. 443, 483, 91 S. Ct. 2022, 2047 (1971) (acknowledging lack of

consistency and clarity in the Court’s Fourth Amendment cases);

Amsterdam, 58 Minn. L. Rev. at 349. Particularly after the horrifying

search and seizure abuses in Germany before and during World War II,

however, the United States Supreme Court increasingly emphasized the

role of the Fourth Amendment in cabining the exercise of arbitrary

governmental power.

The leading Court historians on search and seizure were Justice

Robert Jackson, the chief counsel at Nuremburg, and Justice Felix

Frankfurter. See generally Rabinowitz, 339 U.S. at 68–69, 70 S. Ct. at 436

(Frankfurter, J., dissenting); Amsterdam, 58 Minn. L. Rev. at 369; Victoria

A. Graffeo, Robert H. Jackson: His Years as a Public Servant “Learned in

the Law,” 68 Albany L. Rev. 539, 546 (2005). Justice Jackson noted,

[T]he forefathers, after consulting the lessons of history,

designed our Constitution to place obstacles in the way of a

too permeating police surveillance, which they seemed to

think was a greater danger to a free people than the escape of

some criminals from punishment.

71

United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229 (1948).

Further, Justice Jackson wrote that search and seizure rights

are not mere second-class rights but belong in the catalog of

indispensable freedoms. Among deprivations of rights, none

is so effective in cowing a population, crushing the spirit of

the individual and putting terror in every heart. Uncontrolled

search and seizure is one of the first and most effective

weapons in the arsenal of every arbitrary government.

Brinegar v. United States, 338 U.S. 160, 180, 69 S. Ct. 1302, 1313 (1949)

(Jackson, J., dissenting). Similarly, Justice Frankfurter observed, “The

security of one’s privacy against arbitrary intrusion by the police—which

is at the core of the Fourth Amendment—is basic to a free society.” Wolf

v. Colorado, 338 U.S. 25, 27, 69 S. Ct. 1359, 1361 (1949), overruled on

other grounds by Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S. Ct. 1684,

1691 (1961). 19

The influence of Justices Jackson and Frankfurter continued after

they left the bench. Eventually, the Supreme Court developed an approach

to the open-textured language of the Fourth Amendment known as the

warrant-preference theory. See generally Cuddihy at 602, 633–37, 734–

42 (concluding that the warrant-preference approach was the most

consistent with the founders’ intentions); Morgan Cloud, Searching

19State courts have also recognized the fundamental importance of search and

seizure law to a democratic society. As the Florida Supreme Court observed,

Roving patrols, random sweeps, and arbitrary searches or seizures would

go far to eliminate such crime in this state. Nazi Germany, Soviet Russia,

and Communist Cuba have demonstrated all too tellingly the effectiveness

of such methods. Yet we are not a state that subscribes to the notion that

ends justify means. History demonstrates that the adoption of repressive

measures, even to eliminate a clear evil, usually results only in repression

more mindless and terrifying than the evil that prompted them.

Bostick v. State, 554 So. 2d 1153, 1158–59 (Fla. 1989), rev’d on other grounds, 501 U.S.

429, 439–40, 111 S. Ct. 2382, 2389 (1991); see also McCoy v. State, 491 P.2d 127, 138

(Alaska 1971) (“Certainly the Fourth Amendment guarantee against unreasonable

searches and seizures is at the very core of the protections needed to preserve democracy

against the excesses of government.”).

72

Through History; Searching for History, 63 U. Chi. L. Rev. 1707, 1732–43

(1996) (reviewing Cuddihy) (examining early history); Davies, 98 Mich. L.

Rev. at 559 (noting that the Supreme Court for most of the twentieth

century embraced a warrant-preference approach). Under the warrant-

preference theory, the Supreme Court emphasized the close relationship

between the Reasonableness Clause and the Warrant Clause of the Fourth

Amendment. Maclin, The Complexity of the Fourth Amendment, 77 B.U. L.

Rev. at 928. The touchstone of the Fourth Amendment was the warrant

requirement, subject to limited exceptions. Johnson, 333 U.S. at 14–15,

68 S. Ct. at 369; State v. Ingram, 914 N.W.2d 794, 804 (Iowa 2018). The

warrant-preference approach stresses that ordinarily, in order to be

“reasonable” under the Fourth Amendment, a warrant must be obtained

prior to the search or seizure. See Maclin, The Complexity of the Fourth

Amendment, 77 B.U. L. Rev. at 928 (“[T]he ‘warrant preference rule’ . . .

requires that the safeguards of the Warrant Clause define the

reasonableness of a given search or seizure.”).

In recent years, however, the United States Supreme Court has

begun to diminish search and seizure protections. The Court has departed

from its earlier precedents grounded in history and recent experience in

Europe in favor of a more expansive view of government power.

Doctrinally, the Court has generally downgraded the protections of the

Warrant Clause by significantly limiting its application and adopting an

expansive, modern-day approach to the meaning of the Reasonableness

Clause. See Ingram, 914 N.W.2d at 804–06, 816; Silas J. Wasserstrom,

The Court’s Turn Toward a General Reasonableness Interpretation of the

Fourth Amendment, 27 Am. Crim. L. Rev. 119, 127, 129–30, 148 (1989).

It has now made the new discovery that the “touchstone” of analysis under

the Fourth Amendment is no longer the warrant requirement but is “the

73

reasonableness in all the circumstances of the particular governmental

invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S.

106, 108–09, 98 S. Ct. 330, 332 (1977) (quoting Terry v. Ohio, 392 U.S. 1,

19, 88 S. Ct. 1868, 1878–79 (1968)); cf. Ingram, 914 N.W.2d at 815–16

(contrasting the Supreme Court’s recent departure from the traditional

warrant-preference approach with Iowa’s continued maintenance of a

warrant preference).

The United States Supreme Court has also undermined the strength

of the exclusionary rule. Long ago, Justice Oliver Wendell Holmes declared

in Silverthorne Lumber Co. v. United States that “[t]he essence of a provision

forbidding the acquisition of evidence in a certain way is that not merely

evidence so acquired shall not be used before the Court but that it shall

not be used at all.” 251 U.S. 385, 392, 40 S. Ct. 182, 183 (1920). Yet in

United States v. Leon, the Court found a good-faith exception to the

exclusionary rule. 468 U.S. 897, 913, 104 S. Ct. 3405, 3415 (1984). In

contrast to Justice Holmes’s approach in Silverthorne Lumber, the

Supreme Court in Leon divorced the exclusionary rule from the

substantive commands of the Fourth Amendment, noting that no

provision of the Fourth Amendment expressly precludes the use of

evidence when the provision was violated. Id. at 905–06, 104 S. Ct. at

3411. The Leon Court stressed that the exclusionary rule is “a judicially

created remedy designed to safeguard Fourth Amendment rights generally

through its deterrent effect.” Id. at 906, 104 S. Ct. at 3412 (quoting United

States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620 (1974)).

Applying a pragmatic analysis, the Court concluded that the marginal

benefits of deterrence would be small where a law enforcement officer acts

in objective good faith in a search and seizure context. See id. at 922, 104

S. Ct. at 3420.

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2. Basis for independent state law interpretation of search and

seizure provisions. One of the opinions issued today has an affinity for

following federal precedent in search and seizure law. My views on the

constitutional history and the flaws of following United States Supreme

Court precedent in any lockstep or quasi-lockstep way have been

thoroughly explored in Short, 851 N.W.2d at 481–92, the majority and

concurring opinions in Baldon, 829 N.W.2d at 790–91 (majority opinion);

id. at 803–34 (Appel, J., specially concurring), and Ochoa, 792 N.W.2d at

264–67. I highlight only a handful of important points today.

First, the suggestion is advanced that Iowa’s constitutional history

does not support departing from Fourth Amendment jurisprudence. But

at the time of the Iowa constitutional convention, there was very little

Fourth Amendment jurisprudence. Most of that came later. What is clear,

however, is that the Iowan founding generation had no particular

reverence for the decisions of the United States Supreme Court on the

important constitutional issues of the day. Indeed, at the time of the Iowa

Constitutional Convention of 1857, and for many years prior, the United

States Supreme Court was intent on shoring up the institution of chattel

slavery through its decisions regarding the Fugitive Slave Act, culminating

in the infamous Dred Scott case. See, e.g., Dred Scott v. Sandford, 60 U.S.

(19 How.) 393, 404 (1857), superseded by constitutional amendment, U.S.

Const. amend. XIV.

For example, the fugitive slave decisions were decried at the Iowa

constitutional convention in 1857. According to George Ells, the Due

Process Clause was “violated again and again by the dominant party in the

land, which rides rough-shod oves the necks of freemen.” 1 The Debates

at 102. And Ells’s criticism extended to interpretation of the Due Process

Clause in federal courts:

75

If the words “due process of law,” shall in time be recognized

by our judicial tribunals to mean what they really do

mean, . . . [t]hen, sir, that infamous Fugitive Slave Law will

become a nullity, and the American people will trample its

odious enactments in the dust.

Id. Of course, it was the United States Supreme Court that upheld the

Fugitive Slave Act against constitutional attack. See, e.g., Ableman v.

Booth, 62 U.S. (21 How.) 506, 526 (1858). Ells was not an admirer of the

jurisprudence of the United States Supreme Court and was no lockstep

guy.

When Dred Scott was rendered, there was an outpouring of scathing

criticism of the United States Supreme Court, including a resolution of

condemnation from the Iowa legislature. The Iowa legislature declared

“the case of Dred Scott, is not binding in law or conscience upon the

government or people of the United States.” Short, 851 N.W.2d at 484

(quoting 1858 Iowa Acts Res. 12, at 433). Can’t find much lockstep here.

Further, the resolution stated,

[W]e should be ungrateful to those whose care and foresight

provided for us free homes, and derelict in our duty to those

who still come after us, did we not promptly and sternly

denounce this new doctrine, which if established, degrades

the free states.

Id. (quoting 1858 Iowa Acts Res. 12, at 433). If members of this court

would have appeared at the Iowa Constitutional Convention of 1857 or the

well of the Iowa legislature during the debates about the meaning of Due

Process Clause or the Dred Scott matter and advocated the presumptive

validity of federal caselaw on the Iowa courts, they would have received

glares, not applause.

Although there was not a lot of state search and seizure law in the

early days, there is one case that showed Iowa judges were willing to use

the Iowa Constitution to protect personal liberty. This is the 1863 Polk

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County case of Webb v. Griffith. See Nathan E. Coffin, The Case of Archie

P. Webb, A Free Negro, 11 Annals of Iowa 200, 211–12 (1913) [hereinafter

Coffin]. In the Webb case, an African-American, who had received a

certificate of emancipation, was held in the Polk County jail pursuant to

Billy Haun’s Law, a statute that forbade African-American settlement in

Iowa. See id. at 202–03; see also Robert R. Dykstra, Bright Radical Star:

Black Freedom and White Supremacy on the Hawkeye Frontier 198–99

(1993). Judge John Gray held that Webb’s arrest violated the search and

seizure provision of article I, section 8 of the Iowa Constitution. Coffin, 11

Annals of Iowa at 211–12. Judge Gray declared that Webb’s arrest was

unconstitutional when the only crime charged was that he was a freeman

who settled in the state. See id. It is hard to imagine a federal court under

the tutelage of the United States Supreme Court coming to a similar

conclusion under the Fourth Amendment.

Surely it is clear beyond peradventure that the Iowa founders were

devoted to civil liberties. Iowa’s state motto—“Our liberties we prize and

our rights we will maintain”—is not just a slogan but reflects a libertarian

spirit rather than state authoritarianism. The Iowa Constitution includes

sweeping language in the inalienable rights clause of article I, section 1

based on the Virginia Declaration of Rights, incorporated by Thomas

Jefferson into the Declaration of Independence, but not embraced by

Madison in the United States Constitution because of fear such language

would provoke controversy with slave states. No such hesitation in Iowa.

Indeed, George Ells, 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 also have the best and most clearly defined

77

Bill of Rights.” 1 The Debates at 100. Ells further stated that “the Bill of

Rights is of more importance than all the other clauses in the Constitution

put together, because it is the foundation and written security upon which

the people rest their rights.” Id. at 103.

There is reason to think the devotion to civil liberties extended

beyond the Iowa constitutional convention. For instance, writing in

response to Judge Gray’s decision in Webb, the Burlington Hawk-Eye

declared, “The people of Iowa will thank Judge Gray for vindicating the

charter of their liberties, and throwing the shield of the law over the weak

and helpless.” Coffin, 11 Annals of Iowa at 214.

Second, on turning to our federal founders, it is worth noting that

Madison, among others, looked to the states as the primary source of the

protection of civil liberties. See Baldon, 829 N.W.2d at 808. The very

purpose of the federalist system—with sovereignty divided between the

states and the federal government—was to allow the states to protect the

liberties of the citizen. See id. Indeed, if uniformity was the goal, there

would be no states and no state constitutions. The founders’

understanding of the role of the states in protecting individual liberties

was summarized in Baldon as follows:

Overall, . . . 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.” 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. . . .” 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 secu

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