State of Iowa v. Brian De Arrie McGee

IN THE SUPREME COURT OF IOWA

No. 19–1219

Submitted December 16, 2020—Filed May 14, 2021

STATE OF IOWA,

Appellee,

vs.

BRIAN De ARRIE McGEE,

Appellant.

Appeal from the Iowa District Court for Polk County, William Price

(motion to suppress), Senior Judge, Becky Goettsch (trial) and Christopher

Kemp (sentencing), District Associate Judges.

A defendant appeals his conviction for operating a motor vehicle

while intoxicated, contending that the district court erred in denying his

motion to suppress the results of a blood test. REVERSED AND

REMANDED.

Mansfield, J., delivered the opinion of the court, in which

Christensen, C.J., and Waterman, McDonald, and McDermott, JJ., joined.

McDermott, J., filed a special concurrence in which Christensen, C.J., and

Waterman, J., joined. Appel, J., filed a dissenting opinion. Oxley, J., filed

a dissenting opinion in which Appel, J., joined.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy

(argued), Assistant Appellate Defender, for appellant.

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Thomas J. Miller, Attorney General, Louis S. Sloven (argued),

Assistant Attorney General, John P. Sarcone, County Attorney, Maurice

Curry and Kailyn Heston, Assistant County Attorneys, for appellee.

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MANSFIELD, Justice.

“Affirm if you can, reverse if you must, but never remand.” We

receive this advice often from our colleagues on the trial bench. Here,

however, the law changed after this case was heard in the district court.

In June 2019, the United States Supreme Court decided that the Fourth

Amendment “almost always” permits warrantless blood draws from

unconscious drivers when the police have probable cause to believe the

driver was operating while under the influence of alcohol. Mitchell v.

Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2539 (2019) (plurality

opinion). The Court allowed for an exception in the “unusual case” where

the defendant can “show that his blood would not have been drawn if

police had not been seeking BAC information, and that police could not

have reasonably judged that a warrant application would interfere with

other pressing needs or duties.” Id. at ___, 139 S. Ct. at 2539. As we

discuss herein, this significant development in the law necessitates a

remand.

The defendant caused a two-vehicle accident by driving recklessly.

The occupants of both vehicles were injured. The defendant was rendered

unconscious, suffered a head injury, and was taken to the hospital

smelling strongly of marijuana. A police officer was dispatched to the

hospital to arrange for blood testing of the defendant. The defendant had

been sedated for treatment and a medical professional certified pursuant

to Iowa Code section 321J.7 (2018) that the defendant was unable to

consent or refuse blood testing. Testing was performed, therefore, without

the defendant’s permission. It confirmed that the defendant had both THC

and THC metabolites in his system. The defendant’s motion to suppress

this testing was overruled and the defendant was convicted of operating

while intoxicated (OWI) in violation of Iowa Code section 321J.2.

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On appeal, the defendant argues that this warrantless blood draw

violated Iowa Code section 321J.7, the Fourth Amendment to the United

States Constitution, and article I, section 8 of the Iowa Constitution. We

find the State complied with section 321J.7. Regarding the Fourth

Amendment, we hold that Mitchell applies to cases of suspected driving

while under the influence of controlled substances, in addition to alcohol-

related cases. However, because the parties did not have an opportunity

to make a record under the Mitchell standard, we must utilize that dreaded

remand. We also hold that article I, section 8 does not provide greater

protection from warrantless blood draws than the Mitchell standard.

Accordingly, we reverse the judgment below and remand for further

proceedings in accordance with this opinion.

I. Facts and Procedural Background.

On the afternoon of Saturday, December 8, 2018, at around 2 p.m.,

a call went out to Des Moines police to alert them of a vehicle collision on

Euclid Avenue. Dispatch indicated there were numerous injuries and one

person unconscious. Brian McGee was extracted from the driver’s seat of

one of the vehicles at the scene and taken to the hospital in critical

condition, having suffered a head injury and having been rendered

unconscious from the accident. Witnesses at the scene of the accident

indicated to police that McGee had been traveling at a high rate of speed

and failed to yield before making a left turn. This led to the collision with

the other vehicle. Five occupants of the other vehicle were injured and

had to be transported by medics to the hospital as well. It was determined

when they reached the hospital that their injuries were not life-

threatening.

Traffic was diverted away from the collision area. Both vehicles were

towed away. It took until 4:30 p.m. to restore traffic. As police officers

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and medics tended to McGee, they noticed a strong odor of marijuana

coming from his person. An on-call Des Moines police officer—Tim

Fricke—was summoned to report for duty and assigned the task of

arranging for testing of McGee based on suspicions that he had been

driving while impaired.

Upon arriving at the hospital, Officer Fricke was informed by medical

staff that McGee had been sedated and would be unable to perform any

initial screening tests for impairment or to provide a refusal or consent for

blood testing. Also, Officer Fricke could see that McGee was unresponsive.

Officer Fricke did not attempt to obtain a warrant. He later testified that

he could have done so, but the Des Moines Police Department policy was

to obtain a warrant for blood testing of a nonresponsive driver only if the

offense would be a third or subsequent OWI or there was a serious injury

or death.

Shortly before 4 p.m., Officer Fricke handed an official request for

blood testing and a certification form to an advanced registered nurse

practitioner who was present. The nurse completed and signed the

certification that McGee was presently unable to give consent or refusal

for testing. At this point, the medical staff initiated the steps necessary to

draw blood from McGee. While this was going on, McGee suddenly awoke

in a muddled state. McGee repeated the word “pee” frantically and began

to urinate on himself as medical staff and his family attempted to help him

sit up and urinate into a receptacle. During this time, McGee did not

respond or even attempt to answer questions asked about his condition.

He passed out again after being calmed by family and further attended to

by medical staff. At around 4:10 p.m., McGee’s blood was drawn. Results

from the tests showed traces of lorazepam and delta-tetrahydrocannabinol

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(THC) along with the presence of both the impairing and nonimpairing THC

metabolites.1

On March 13, 2019, the State filed a trial information in the Polk

County District Court charging McGee with OWI first offense. On April 11,

McGee filed a motion to suppress the evidence obtained as a result of the

warrantless blood draw, arguing the State needed “a warrant or exigent

circumstances.”

An evidentiary hearing took place on May 7 and 8 at which Officer

Fricke testified and both his body cam video and the certification form

were received in evidence. At the conclusion of the hearing, the district

court denied McGee’s motion to suppress. The district court ruled the

State had complied with Iowa Code section 321J.7 in undertaking the

warrantless blood draw and that neither the United States Constitution

nor the Iowa Constitution required the State to obtain a warrant for the

blood draw.

Thereafter the parties stipulated to a trial on the minutes. The

district court found McGee guilty of first-offense OWI under the Iowa Code

section 321J.2(1)(c) alternative (“any amount of a controlled substance is

present in the person, as measured in the person’s blood”). The district

court expressly declined to find McGee guilty under section 321J.2(1)(a)

(the “under the influence” alternative). McGee was sentenced to one year

in jail with all but seven days suspended, fined $1250, and ordered to pay

over $10,000 in restitution to various victims.

II. Standard of Review.

McGee’s motion to suppress raised both statutory and

constitutional grounds. As to the statutory ground, our review is for

1The tests showed 15 ng/mL lorazepam, 17 ng/mL THC, 3 ng/mL hydroxy-THC,

and 59 ng/mL carboxy-THC.

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correction of errors at law and the district court’s findings of fact are

binding if supported by substantial evidence. See State v. Smith, 926

N.W.2d 760, 762 (Iowa 2019). With respect to the constitutional grounds,

our review is de novo. State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019).

III. Legal Analysis.

Iowa Code section 321J.7 provides,

A person who is dead, unconscious, or otherwise in a

condition rendering the person incapable of consent or refusal

is deemed not to have withdrawn the consent provided

by section 321J.6, and the test may be given if a licensed

physician, physician assistant, or advanced registered nurse

practitioner certifies in advance of the test that the person is

unconscious or otherwise in a condition rendering that person

incapable of consent or refusal.2

In this case, an advanced registered nurse practitioner certified at

3:59 p.m. on December 8, 2018, that McGee was incapable of consent or

refusal, having received intravenous injections of Ativan, Fentanyl, and

Haldol. McGee maintains that the blood draw was unlawful and violated

both the Fourth Amendment to the United States Constitution and article

I, section 8 of the Iowa Constitution.

A. Compliance with Iowa Code Section 321J.7. Before getting to

the constitutional questions, we will address McGee’s claim that the blood

2Iowa Code section 321J.7 incorporates by reference the notion of implied consent

set forth in section 321J.6. That latter section provides in part,

A person who operates a motor vehicle in this state under

circumstances which give reasonable grounds to believe that the person

has been operating a motor vehicle in violation of section

321J.2 or 321J.2A is deemed to have given consent to the withdrawal of

specimens of the person’s blood, breath, or urine and to a chemical test or

tests of the specimens for the purpose of determining the alcohol

concentration or presence of a controlled substance or other drugs, subject

to this section.

Iowa Code § 321J.6(1). “Iowa’s implied consent law ‘is based on the premise “that a driver

impliedly agrees to submit to a test in return for the privilege of using the public

highways.” ’ ” State v. Garcia, 756 N.W.2d 216, 220 (Iowa 2008) (quoting State v.

Knous, 313 N.W.2d 510, 512 (Iowa 1981)).

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draw did not comply with the statute. When the nurse completed the

certification at 3:59 p.m., McGee was sedated and appeared to be asleep.

As preparations were being made for the blood draw around 4:04 p.m.,

McGee stirred. He made some irregular movements and indicated he had

to “pee.” With assistance he sat up at the front of the hospital bed. He

urinated—initially on himself and on the floor of the hospital room and

later into a urinal that was held for him. At approximately 4:06 p.m.,

McGee was helped to lie back down. He appeared to fall back asleep. The

actual blood draw occurred four minutes later at 4:10 p.m.

McGee claims that a new certification should have been obtained in

light of his waking up temporarily to urinate. The district court disagreed,

finding that McGee’s condition did not materially change during the eleven

minutes between the certification and the actual blood draw. The court

noted that McGee remained “totally unresponsive to the questions of the

medical professionals [during the blood draw].” The recording on Officer

Fricke’s body cam shows the full sequence of events from 3:59 to 4:10 p.m.

The district court’s factual findings are supported by substantial evidence.

See State v. Axline, 450 N.W.2d 857, 859–60 (Iowa 1990) (stating that

“[c]onsiderable deference should be given to a trial court’s factual findings”

under Iowa Code § 321J.7, and that a person who is conscious can

nevertheless be “in a condition rendering him incapable of giving or

refusing consent”).

As a matter of statutory interpretation, we agree that Iowa Code

section 321J.7 does not usually require recertification when the blood

draw occurs within eleven minutes of the initial certification.

Certifications do not expire in eleven minutes, at least without clearer

evidence that the driver has become capable of refusing or consenting in

the meantime. Statutes come with a presumption of reasonableness, see

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Iowa Code § 4.4(3), and this is a reasonable approach. We hold that the

blood draw complied with section 321J.7.

B. Constitutionality of the Blood Draw Under the Fourth

Amendment. We now turn to McGee’s Fourth Amendment objection to

the admission of the blood test results. In a series of recent decisions, the

United States Supreme Court has applied the Fourth Amendment to blood

alcohol testing. Its opinions, somewhat like the allegedly intoxicated driver

whose rights they have sought to define, have twisted and turned

somewhat. They have not necessarily hewed to a straight path.

In Missouri v. McNeely, the Court rejected the proposition that the

dissipation of alcohol in the blood justified a per se exigent-circumstances

exception to the warrant requirement. 569 U.S. 141, 152, 156, 165, 133

S. Ct. 1552, 1561, 1563, 1568 (2013). As the Court put it,

In short, while the natural dissipation of alcohol in the

blood may support a finding of exigency in a specific case, . . .

it does not do so categorically. Whether a warrantless blood

test of a drunk-driving suspect is reasonable must be

determined case by case based on the totality of the

circumstances.

Id. at 156, 133 S. Ct. at 1563.

This then led to the question whether other exceptions to the

warrant requirement might apply. In Birchfield v. North Dakota, the Court

held that the search-incident-to-arrest (SITA) exception to the warrant

requirement authorized breath tests, but not blood tests, for alcohol. 579

U.S. ___, ___, 136 S. Ct. 2160, 2185 (2016). The Court reasoned,

Blood tests are significantly more intrusive, and their

reasonableness must be judged in light of the availability of

the less invasive alternative of a breath test. Respondents

have offered no satisfactory justification for demanding the

more intrusive alternative without a warrant.

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Id. at ___, 136 S. Ct. at 2184. Addressing the situation where the driver

might not be capable of performing a blood test, the Court commented,

It is true that a blood test, unlike a breath test, may be

administered to a person who is unconscious (perhaps as a

result of a crash) or who is unable to do what is needed to take

a breath test due to profound intoxication or injuries. But we

have no reason to believe that such situations are common in

drunk-driving arrests, and when they arise, the police may

apply for a warrant if need be.

Id. at ___, 136 S. Ct. at 2184–85.

Lastly, in June 2019, one month after the suppression ruling in this

case, the Court decided Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct.

2525. Mitchell seemingly walked back (1) McNeely’s rejection of categorical

exigent-circumstances exceptions and (2) Birchfield’s endorsement of

warrant applications for blood tests of incapacitated persons. Mitchell

presented the question of whether a warrant was needed for a blood draw

from an unconscious driver. Id. at ___, 139 S. Ct. at 2529–30. The Mitchell

plurality opinion concluded as follows:

When police have probable cause to believe a person

has committed a drunk-driving offense and the driver’s

unconsciousness or stupor requires him to be taken to the

hospital or similar facility before police have a reasonable

opportunity to administer a standard evidentiary breath test,

they may almost always order a warrantless blood test to

measure the driver’s BAC without offending the Fourth

Amendment. We do not rule out the possibility that in an

unusual case a defendant would be able to show that his

blood would not have been drawn if police had not been

seeking BAC information, and that police could not have

reasonably judged that a warrant application would interfere

with other pressing needs or duties. Because Mitchell did not

have a chance to attempt to make that showing, a remand for

that purpose is necessary.

Id. at ___, 139 S. Ct. at 2539 (plurality opinion).

The Mitchell plurality reached back toward the reasoning in

Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966), a case the

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Supreme Court had decided over a half-century earlier. See Mitchell, 588

U.S. at ___, 139 S. Ct. at 2537 (“Schmerber controls.”). In Schmerber, the

Court had upheld a warrantless blood draw from a conscious, suspected

drunk driver. 384 U.S. at 772, 86 S. Ct. at 1836. It did so on the basis

that blood alcohol “begins to diminish shortly after drinking stops” and

“where time had to be taken to bring the accused to a hospital and to

investigate the scene of the accident, there was no time to seek out a

magistrate and secure a warrant.” Id. at 770–71, 86 S. Ct. at 1836.

Justice Thomas, concurring in the judgment, provided the

necessary fifth vote in Mitchell. See Mitchell, 588 U.S. at ___, 139 S. Ct. at

2539 (Thomas, J., concurring in the judgment). He had dissented in

McNeely. See 569 U.S. at 176, 133 S. Ct. at 1574 (Thomas, J., dissenting).

Concurring in the result only in Mitchell, Justice Thomas reiterated his

view that the natural metabolization of alcohol in the blood stream creates

a per se exigency and a per se exception to the warrant requirement

whenever law enforcement have probable cause to believe a driver is

drunk. See 588 U.S. at ___, 139 S. Ct. at 2539.

“Under the narrowest grounds doctrine, the holding of a fragmented

Supreme Court decision with no majority opinion ‘may be viewed as that

position taken by those Members who concurred in the judgments on the

narrowest grounds.’ ” State v. Iowa Dist. Ct., 801 N.W.2d 513, 522 (Iowa

2011) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990,

993 (1977)). Hence, for Fourth Amendment purposes, the Mitchell

plurality opinion controls.

The Mitchell plurality stated,

[E]xigency exists when (1) BAC evidence is dissipating and

(2) some other factor creates pressing health, safety, or law

enforcement needs that would take priority over a warrant

application. Both conditions are met when a drunk-driving

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suspect is unconscious, so Schmerber controls: With such

suspects, too, a warrantless blood draw is lawful.

588 U.S. at ___, 139 S. Ct. at 2537. Thus, Mitchell stands for a rule that

whenever probable cause exists to believe an unconscious driver has

committed drunk driving, a warrantless blood draw would “almost always”

be acceptable. Id. at ___, 139 S. Ct. at 2539. The only exception arises

where law enforcement “could not have reasonably judged that a warrant

application would interfere with other pressing needs or duties.” Id. at ___,

1139 S. Ct. at 2539. Exigent circumstances, in other words, is defined

generously, and is based on law-enforcement workload.3

If McGee had smelled of an alcoholic beverage rather than

marijuana, there would be no doubt that Mitchell applies to this case. But

those are not the facts. McGee’s erratic driving, combined with the “strong

odor” of burnt marijuana coming from him at the scene and at the hospital,

gave the police probable cause to conclude that he had violated the

controlled substance prongs of Iowa Code section 321J.2(1). See Iowa Code

§ 321J.2(1)(a) & (c); State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011) (“[A]

trained officer’s detection of a sufficiently distinctive odor, by itself or when

accompanied by other facts, may establish probable cause.”); State v.

McMullen, 940 N.W.2d 456, 461 (Iowa Ct. App. 2019) (“McMullen points to

no authority requiring the officer to describe the odor with the specificity

of a sommelier.”). However, there was not enough here for a drunk driving

probable cause determination. So the question we need to answer is

whether Mitchell extends to controlled substances.

3As we discuss below, this Mitchell rule shares some characteristics with our 1966

holding under both the Fourth Amendment and article I, section 8 in a case involving an

unconscious driver suspected of driving under the influence of alcohol. See State v.

Findlay, 259 Iowa 733, 743, 145 N.W.2d 650, 656 (1966).

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We think it does. At least one commentator has expressed this view:

Mitchell could also provide justification for warrantless blood

draws in cases where someone is suspected of driving under

the influence of drugs, which also present a continuous risk

that evidence is being destroyed through the suspect’s

metabolic processes. . . . Mitchell will likely play a role in

future cases with drivers who are under the influence of

drugs, which present similar, if not elevated, potential health,

safety, and law enforcement needs.

The Supreme Court, 2018 Term—Leading Cases, 133 Harv. L. Rev. 302,

310 n.86 (2019).

Additionally, the South Carolina Supreme Court utilized the Mitchell

plurality’s standard in a case of controlled substances. See State v. McCall,

839 S.E.2d 91 (S.C. 2020). In McCall, the driver was involved in a very

serious accident. Id. at 92. Officers “quickly believed that [the driver] was

impaired by a substance other than alcohol.” Id. at 95. The court found

that exigent circumstances existed for a warrantless blood draw given the

other duties of the officers and the likelihood that it would have taken

ninety minutes to obtain a warrant. Id. at 95. The court added, “While

alcohol has a relatively steady dissipation rate, other substances dissipate

much faster.” Id. In a footnote, the court adverted to expert testimony

that the active ingredient in marijuana (THC) metabolizes more rapidly

than alcohol. Id. at 95 n.2.

We have noted in our cases that “nonimpairing metabolites” of

marijuana can remain in the body for some time and that any amount of

these metabolites in blood or urine can constitute a violation of Iowa Code

section 321J.2. See State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017); see

also State v. Newton, 929 N.W.2d 250, 256–59 (Iowa 2019). THC itself

apparently dissipates much more quickly. See Andrea Roth, The Uneasy

Case for Marijuana as Chemical Impairment Under a Science-Based

Jurisprudence of Dangerousness, 103 Calif. L. Rev. 841, 885 (2015) (“THC

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from smoked cannabis is ‘detectable in plasma within seconds after the

first puff,’ with peak plasma concentration generally happening within

three to ten minutes.” (quoting Priyamvada Sharma et al., Chemistry,

Metabolism, and Toxicology of Cannabis: Clinical Implications, 7 Iran J.

Psychiatry 149, 151 (2012))). While THC can be found in the body “several

hours or even days after consumption, depending on the frequency and

amount of usage,” id., and “marijuana’s unpredictable properties render

nearly impossible any inference about the likely psychoactive effect on the

brain of a specific THC blood level,” id. at 887, the presence of THC in the

blood makes the case for impairment stronger than it otherwise would be.

Law enforcement is not required to settle for the minimum in

suspected OWI drug cases. Detection of the nonimpairing and long-lasting

metabolite carboxy-THC is enough to establish OWI under Iowa law. See

Newton, 929 N.W.2d at 256–59; Childs, 898 N.W.2d at 184. That’s the

bare minimum. But there are legitimate reasons why law enforcement

would want more—namely, proof that fast-dissipating THC itself was in

the driver’s system. For one thing, evidence that the driver actually had

the active ingredient and not merely an inert byproduct in their system

might help avoid jury nullification in an era when criminalization of

marijuana use has become increasingly controversial.

Also, if the driver unintentionally caused a serious injury to another

person by operating a motor vehicle while intoxicated, that’s a class “D”

felony. See Iowa Code § 707.6A(4). In State v. Adams, a prosecution for

the related crime of causing someone’s death while intoxicated, we

indicated that the State has the burden “to prove a causal connection

between the defendant’s intoxicated driving and the victim’s death.” 810

N.W.2d 365, 371 (Iowa 2012). So, if there is a potential for serious injuries,

the State needs proof that the defendant was actually under the influence,

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and not merely had vestiges of past marijuana use in their bloodstream.

We recognize that a report had come back from the hospital that the five

occupants of the other vehicle had not suffered serious injuries. Still,

situations like this can be fluid. Here, one of the injured children needed

thirteen stitches, missed two weeks of school, and was still scared of

traveling in a car three and a half months later.

Additionally, from a victim restitution standpoint, it matters whether

the defendant was under the influence of THC or just technically had a

nonimpairing metabolite in their system. See Iowa Code § 910.1(6)

(defining “pecuniary damages” for purposes of victim restitution as

damages “which a victim could recover against the offender in a civil action

arising out of the same facts or event”); State v. Shears, 920 N.W.2d 527,

539 (Iowa 2018) (“[M]any of our criminal restitution cases employ the

causation test applicable in ordinary tort settings.”). Notably, the

restitution award here amounted to more than $10,000.

We have ourselves analogized the body’s natural elimination of

drugs to its natural elimination of alcohol, and upheld a warrantless

stomach pump for drug evidence on that basis. See State v. Strong, 493

N.W.2d 834 (Iowa 1992). Thus, in Strong, we explained,

[I]t is common knowledge that cocaine, once ingested orally,

is absorbed into the blood and, like alcohol, is eliminated by

the body. Therefore, the passage of time alone will operate to

destroy the evidence. We conclude, under the rationale

of Schmerber, that exigent circumstances existed here which

justified a warrantless search.

Id. at 837. Notably, the rationale of Schmerber, which we relied upon in

Strong, is essentially the rationale of Mitchell. See Mitchell, 588 U.S. at ___,

139 S. Ct. at 2537.

For all these reasons, we conclude that the Fourth Amendment

standards in Mitchell apply when law enforcement has probable cause to

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believe that an incapacitated person committed OWI with respect to

marijuana instead of alcohol.4 This then leads to the question whether we

should apply those standards ourselves or remand for the district court to

do so. With verve and gusto, the State has gone through the minutes in

its appellate briefing and detailed for us how it believes the Mitchell

exigent-circumstances standard was met. In the State’s view, this was a

very busy Saturday afternoon for the Des Moines police.

But no one had a real opportunity to make a record in the district

court because the Supreme Court had not decided Mitchell yet.

Accordingly, we think the appropriate course under the Fourth

Amendment is to reverse and remand with directions to conduct a

suppression hearing under the Mitchell test: Is this a situation where

Officer Fricke “could not have reasonably judged that a warrant

application would interfere with other pressing needs or duties”? Id. at

___, 139 S. Ct. at 2539. Other state appellate courts have followed this

course of action in light of Mitchell. See, e.g., McGraw v. State, 289 So. 3d

836, 838–39 (Fla. 2019); State v. Chavez-Majors, 454 P.3d 600, 607–08

4One of the dissenting opinions argues that the State had to “present[] facts to the

district court to support the compelling need to obtain evidence of active THC.” This

would be inconsistent with Mitchell, where the plurality instead relied on legislative facts

to establish a general rule upholding warrantless blood draws from incapacitated drivers

suspected of drunk driving, subject only to an exception where the “police could not have

reasonably judged that a warrant application would interfere with other pressing needs

or duties.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539. As the plurality elaborated in a

footnote,

[W]e adopt a rule for an entire category of cases—those in which a motorist

believed to have driven under the influence of alcohol is unconscious and

thus cannot be given a breath test. This rule is not based on what

happened in petitioner’s particular case but on the circumstances

generally present in cases that fall within the scope of the rule.

Id. at ___ n.2, 139 S. Ct. at 2534 n.2.

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(Kan. 2019); State v. Key, 848 S.E.2d 315, 349 (S.C. 2020).5 Now we do

so as well.

C. Constitutionality of the Blood Draw Under Article I, Section

8. We believe State v. Findlay provides the starting-point for article I,

section 8 analysis of warrantless blood draws of allegedly intoxicated but

incapacitated drivers. 259 Iowa 733, 145 N.W.2d 650 (1966).6 In Findlay,

the defendant was traveling down an Iowa highway northbound when his

vehicle collided with another automobile traveling in the opposite

direction. Id. at 735, 145 N.W.2d at 652. All occupants of both

automobiles were injured. Id. At the scene of the accident, witnesses

observed a semi-conscious defendant who smelled strongly of liquor. Id.

Upon arriving at the hospital, the sheriff asked the attending doctor to

obtain a blood sample from the defendant, who was now unconscious. Id.

The physician refused, but did sign the certification form that the

defendant was unconscious and not capable of consenting. Id. On the

sheriff’s order, a registered nurse took the blood sample. Id. It was sent

5McGee asserts that the State did not argue exigent circumstances below. That

is correct but not surprising since Mitchell had yet not been decided. Instead, McGee

argued there were no exigent circumstances. However, he did not utilize the definition

which Mitchell later gave to that term, but a narrower meaning taken from McNeely,

Birchfield, and State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017). The State countered that the

Iowa Code section 321J.7 procedure for incapacitated drivers was constitutional and its

constitutionality had not been affected by McNeely, Birchfield, or Pettijohn. The fact that

neither party had a chance to make a record on the Mitchell standard highlights, again,

why a remand would be appropriate.

6The State discussed Findlay at some length in its briefing. McGee did not even

cite Findlay. We caution parties that the vintage of an Iowa constitutional precedent is

not, in itself, a reason to forgo discussion of that precedent. For example, in 2014 we

treated State v. Cullison, 173 N.W.2d 533 (Iowa 1970), as the governing precedent in an

article 8, section 1 case. See State v. Short, 851 N.W.2d 474, 506 (Iowa 2014) (discussing

and relying on Cullison). We did so even though Cullison does not mention article I, section

8, and even though our court had not cited Cullison for any reason between 1970 and

2010.

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for testing where results indicated the defendant was intoxicated. Id. at

735–36, 145 N.W.2d at 652.

Following his OWI conviction, the defendant appealed, raising the

inadmissibility of the blood test. Id. We found the statute had been

complied with. Id. at 737–38, 145 N.W.2d at 653. We observed that Iowa’s

implied-consent law for driving, which was then only three years old,

“properly and clearly provides a workable rule governing ‘searches and

seizures,’ which rule takes into account the ‘practical demands of effective

criminal investigation and law enforcement.’ ” Id. at 737, 145 N.W.2d at

653 (quoting Ker v. California, 374 U.S. 23, 34, 83 S. Ct. 1623, 1630

(1963)). We also concluded that neither the Fourth Amendment nor article

I, section 8 had been violated, noting that blood tests “are recognized as

commonplace in these days of periodic physical examinations, the

quantity of blood needed for the test is minimal, and for most people the

procedure involves virtually no risk, trauma or pain.” Id. at 739, 145

N.W.2d at 654. We added,

The public interest requires a holding that the disappearing

evidence due to bodily assimilation created an emergency

requiring prompt action. Under these conditions we find no

unreasonable search and seizure and no substantial violation

of defendant’s constitutional right of due process.

Id. at 740, 145 N.W.2d at 655. Our analysis on this point rested heavily

on Schmerber. See id. at 738–39, 741–42, 744, 145 N.W.2d at 654–57.

Thus, Findlay upheld a warrantless blood draw performed on an

incapacitated driver against both state and federal constitutional

challenges. At its core, Findlay largely forecasts the plurality opinion in

Mitchell. We say “largely” because the exigent-circumstances discussions

in the two opinions are not exactly the same. Mitchell adopts a rule that

exigent circumstances are “almost always” present, with the only

19

exception being a light police workload. Findlay likewise gives leeway to

the State, but focuses on the potential loss of evidence. Hence, Findlay

indicates that when the officer “reasonably believed he was confronted

with an emergency, a situation in which the delay necessary to obtain a

warrant threatened ‘the destruction of evidence,’ he can rightfully order

the blood withdrawal and complete the test.” Id. at 742, 145 N.W.2d at

656 (citation omitted) (quoting Preston v. United States, 376 U.S. 364, 367,

84 S. Ct. 881, 883 (1964)). Moreover, Findlay implies that when two hours

and ten minutes have passed since the accident, exigent circumstances

are per se present. See id. at 743, 145 N.W.2d at 656.7

Despite the existence of the Findlay precedent, and its heuristic

resemblance to Mitchell, each side in this case prefers that we not follow

Mitchell under the Iowa Constitution. McGee urges us to apply State v.

Pettijohn, 899 N.W.2d 1 (Iowa 2017), to his case. Pettijohn held that a

warrant is ordinarily required under article I, section 8 before taking a

breath test for blood alcohol from a suspected drunken boater. Id. at 22–

25. We indicated that any exigent-circumstances exception to this warrant

requirement under the Iowa Constitution should be available only rarely:

[W]hen unusual circumstances arise that make an officer

obtaining a warrant within two hours of witnessing the

arrestee operating a boat impracticable, they may support the

determination that exigent circumstances exist to justify the

administration of a warrantless breath test.

Id. at 24 (emphasis added). Although decided under the Iowa Constitution,

Pettijohn borrowed from the discussions of exigent circumstances in

McNeely and Birchfield and suggested that the scope of that exception

7Notably,

the lapse of time between the accident and the blood draw at the hospital

was two hours and ten minutes both in Findlay and in the present case.

20

would dwindle in OWI cases as electronic warrants became more

widespread. See id. at 23–25.

Invoking Pettijohn, McGee argues that a warrant should be required

for a blood draw from an allegedly intoxicated driver except in the

infrequent situation when the State cannot feasibly get a warrant on time.

We decline to adopt that position for two reasons. First, in Pettijohn, we

expressly limited our decision to boating while intoxicated. Id. at 38. To

make this clear, we devoted a separate section of the opinion and a

separate heading to this point. Id.8 Second, if we extended Pettijohn to

driving, there would be no principled way to limit the extension to blood

tests. Pettijohn, after all, involved a breath test. And we believe there

would be significant practical costs in presumptively requiring warrants in

OWI driving cases—without any corresponding gains in civil liberties.

Intoxicated driving often occurs when intoxication occurs, that is, at

night and on weekends. And it is unfortunately rather prevalent. In 2019,

the Iowa Department of Transportation reported 14,395 OWI revocations

statewide. Iowa DOT, Iowa OWI Revocations by Year and County 2001–

2020 (2021), https://iowadot.gov/mvd/stats/owirevocations.pdf

[https://perma.cc/69FP-4825]. So if warrants were presumptively

required, we expect thousands of off-hours warrant applications every

year. It is true that some drivers might consent, but the scales of the

consent law could no longer be tipped with adverse consequences for not

consenting. The typical driver suspected of OWI would therefore have

8A special concurrence articulated reasons why Pettijohn would not apply to

driving. 899 N.W.2d at 40–41 (Cady, C.J., concurring specially). A dissent criticized

these distinctions as unsound. Id. at 42–43 (Waterman, J., dissenting). Yet the dissent

also stated, “Trial judges should accept the word of the majority and Chief Justice Cady’s

special concurrence that today’s decision is limited to drunken boaters. The door is

closed to any effort to extend this decision to drunken drivers.” Id. at 42.

21

every incentive to buy time by not consenting, thereby forcing law

enforcement to go through the hoops of obtaining a warrant.

And to what gain in civil liberties? Independent review by a judicial

officer of the asserted grounds for searching a house, an apartment, a

computer, or a cellphone matters. A wide variety of reasons for such

searches exist, and there is no single formula that separates the proper

from the improper search. Someone needs to sift through the asserted

grounds for the search, make sure there is probable cause, and limit the

search appropriately. With OWI, however, there are few if any judgment

calls by the time a chemical test would be administered. Notably, in this

case, McGee has not argued that probable cause for a blood draw was

lacking. That is typical; only in the rare case does the defendant argue

that implied consent was improperly invoked due to the lack of probable

cause. More often, the defendant challenges the initial vehicle stop or

alleges a violation of some statutory procedure. Here the police could have

obtained a warrant and, according to Officer Fricke, would have done so if

they had been investigating a more serious crime such as OWI third.

Moreover, with OWI, the relevant events giving rise to probable cause

happen over a matter of minutes. Recording of those events is feasible,

unlike with the events allegedly supporting probable cause for search of a

home. Law enforcement has the incentive to record encounters with

drivers suspected of OWI under the existing implied-consent regime, and

those recordings provide more protection to defendants than a formalistic

warrant requirement would.9

Once a warrant had issued based on law enforcement’s

representations about signs of intoxication, which we believe would

9See Pettijohn, 899 N.W.2d at 52 (Waterman, J., dissenting) (questioning the value

of “assembly-line warrants” in OWI cases).

22

routinely occur, the defendant would have great difficulty challenging the

test results. See State v. Shanahan, 712 N.W.2d 121, 132 (Iowa 2006)

(noting that once a warrant issues “[w]e do not attempt to independently

determine probable cause but rather ‘merely decide whether the issuing

judge had a substantial basis for concluding probable cause existed’ ”

(quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997))). By contrast,

“[t]he State bears the burden of proving by a preponderance of the evidence

that a warrant was not needed to authorize a warrantless search.” State

v. Jackson, 878 N.W.2d 422, 429 (Iowa 2016).

In sum, a presumptive warrant requirement for cases under Iowa

Code section 321J.2, similar to the one we recognized in Pettijohn for

section 462A.14 cases, would consume significant resources, both for the

police and the courts. At the same time, we doubt it would add

meaningfully to the existing protections for drivers derived from the

implied-consent law.

Implied-consent laws have been present in all fifty states since the

1960s and they have not changed all that much during those six decades.

Their universal adoption suggests that they work and that they aren’t

viewed as especially controversial. This may explain why the Supreme

Court in Mitchell seemingly pulled back from its tone in McNeely and

Birchfield, while gesturing as to the importance of blood alcohol testing.

See Mitchell, 588 U.S. at ___, 139 S. Ct. at 2535–38 (plurality opinion). The

Mitchell plurality opinion is inelegant, it reads more like a debater’s

pamphlet than a tightly written legal analysis, and yet to us it generally

makes sense.

At the same time that we are reluctant to tow Pettijohn onto dry land

as McGee asks, we must also decline the State’s invitation to hold Iowa

Code section 321J.7 per se compliant with the Iowa Constitution. The

23

State wants us to recognize implied consent as a “free-standing exception”

to the article I, section 8 warrant requirement. The Supreme Court has

not taken this step in its Fourth Amendment jurisprudence. We agree

with the State that, in theory, nothing prevents us from adopting a

narrower interpretation of article I, section 8 than the Supreme Court’s

interpretation of the Fourth Amendment. Still, in this case, at this time,

we are not inclined to do so.

Warrant exceptions need to be grounded in an underlying purpose

or principle. One such principle is that warrantless searches are

permissible when it would be impractical or unduly formalistic to obtain a

warrant. This has led us to recognize warrant exceptions for exigent

circumstances, searches incident to arrest, automobile searches, and

consent. However, an exception needs to be based on something other

than the legislation that created the exception. The problem with implied

consent is that it is an artificial construct of Iowa Code chapter 321J. As

the State acknowledges, implied consent “is not actual consent.” See also

Mitchell, 588 U.S. at ___, 139 S. Ct. at 2533 (“[O]ur decisions have not

rested on the idea that these laws do what their popular name might seem

to suggest—that is, create actual consent to all the searches they

authorize.”).

For now, therefore, we agree with the State’s fallback position.

Article I, section 8 does not demand a more rigorous standard than the

Mitchell plurality imposed for warrantless blood draws on incapacitated

drivers. Mitchell is a workable state constitutional standard. Accordingly,

the Fourth Amendment remand we have ordered will resolve any issues

under article I, section 8.

D. Equal Protection Issues. Finally, McGee argues that it violates

both the Fourteenth Amendment and article I, section 6 equal protection

24

for unconscious drivers suspected of OWI to be treated differently from

conscious drivers. We disagree. Since neither a suspect class nor a

fundamental right is involved, we apply the rational basis test.10 There are

rational reasons for treating the two categories of motorists differently.

Someone who is conscious can decide whether to consent or not to consent

to testing. So it is logical to give them the choices delineated in Iowa Code

sections 321J.6 and 321J.9. An unconscious driver by definition can’t

consent, and it would be unfair to allow such a driver to refuse. Unfair to

the driver, who would suffer license revocation under section 321J.9; and

unfair to the State, which would be unable to put the refusal into evidence

because there had been no exercise of a choice. The Colorado Supreme

10McGee argues that there is a fundamental right involved because a blood draw

implicates his article I, section 8 right to be free from unreasonable searches of his body.

This approach is off the mark because it muddles the distinction between equal protection

and other express constitutional guaranties. The fundamental rights analysis is most

gainfully employed when a classification impinges upon the exercise of a fundamental

right that lacks its own explicit constitutional guaranty—such as the right to marry or

the right to travel. See Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584 (2015);

Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322 (1969). Where, however, a law has

already been found not to violate an explicit constitutional guaranty, it usually does not

add to the analysis to argue that the classification drawn by the law should be subject to

strict scrutiny because it affects the fundamental right shielded by that same guaranty.

Instead, at that point, the rational basis test is typically applied.

A good example of this approach is Baker v. City of Iowa City, 867 N.W.2d 44 (Iowa

2015). After determining that the Iowa City Civil Rights Ordinance did not infringe the

Bakers’ freedom of association, we then rejected their argument that their equal

protection claim should reviewed under strict scrutiny. Id. at 57. As we put it,

In their brief, the Bakers argue the ordinance infringes on their

fundamental right to freedom of association under the First Amendment,

and we should apply a strict scrutiny analysis. However, we have

previously decided in this opinion the ordinance does not infringe on their

fundamental right to freedom of association. Thus, we will not apply strict

scrutiny. Therefore, rational basis review applies to the Bakers’ federal

equal protection claim.

Id.

In sum, the fundamental rights branch of equal protection analysis is usually not

viewed as a way to expand the recognized substantive scope of other express

constitutional guaranties. If it were, litigants would be raising it in just about every case

involving alleged infringement of some other express constitutional provision.

25

Court recently explained these points well in rejecting a similar challenge

to Colorado’s OWI law:

When drivers are unconscious, law enforcement officers are

deprived of the evidence they typically rely on in drunk-driving

prosecutions: unlike conscious drivers, unconscious drivers

cannot perform roadside maneuvers, display speech or

conduct indicative of alcohol impairment, or admit to alcohol

consumption. In order to effectively combat drunk driving,

the state needs some means of gathering evidence to deter and

prosecute drunk drivers who wind up unconscious. Section

42–4–1301.1(8) satisfies that need. Therefore, Hyde’s equal

protection challenge, like his Fourth Amendment claim, fails.

People v. Hyde, 393 P.3d 962, 969 (Colo. 2017) (en banc); see also People

v. Kates, 428 N.E.2d 852, 855 (N.Y. 1981) (“[D]enying the unconscious

driver the right to refuse a blood test does not violate his right to equal

protection.”). Accordingly, we hold that section 321J.7 does not violate the

Fourteenth Amendment or article I, section 6.

IV. Conclusion.

For the foregoing reasons, we reverse McGee’s judgment and

conviction and remand for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Christensen, C.J., and Waterman, McDonald, and McDermott, JJ.,

join this opinion. McDermott, J., files a special concurrence in which

Christensen, C.J., and Waterman, J., join. Appel, J., files a dissenting

opinion. Oxley, J., files a dissenting opinion in which Appel, J., joins.

26

#19–1219, State v. McGee

McDERMOTT, Justice (concurring specially).

I join the majority opinion, but I write separately because I believe

the Iowa Constitution’s search and seizure protections in article I, section

8 do not mandate the procedures to establish “exigent circumstances” that

the United States Supreme Court announced in its plurality opinion in

Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019).

We generally interpret the search and seizure provisions in the Iowa

Constitution to track with federal interpretations of the Fourth

Amendment to the United States Constitution. State v. Brown, 930

N.W.2d 840, 847 (Iowa 2019). Yet we nonetheless have a duty to interpret

provisions of the Iowa Constitution independently, even when two

constitutional provisions “contain nearly identical language and have the

same general scope, import, and purpose.” State v. Brooks, 888 N.W.2d

406, 410–11 (Iowa 2016) (quoting State v. Jackson, 878 N.W.2d 422, 442

(Iowa 2016)).

As the majority points out, the United States Supreme Court’s recent

decisions applying the Fourth Amendment to blood alcohol testing have

wound a twisted path culminating most recently in Mitchell. The plurality

opinion in Mitchell permits a warrantless draw of blood from an

unconscious driver based on probable cause except—and here’s the

catch—where law enforcement “could not have reasonably judged that a

warrant application would interfere with other pressing needs or duties.”

588 U.S. at ___, 139 S. Ct. at 2539. Stated differently, under the federal

application of the probable cause requirement, in cases involving an

unconscious driver suspected of alcohol intoxication, a blood draw from

the driver is permissible without a warrant only if some other circumstance

27

“creates pressing health, safety, or law enforcement needs that would take

priority over a warrant application.” Id. at ___, 139 S. Ct. at 2537.

Under the Mitchell plurality’s holding, when the police come upon

the scene of a crash and find an unconscious driver, whether probable

cause exists to conduct a blood draw without a search warrant doesn’t

depend on circumstances inherent to the driver or the crash but on

whether the police have some other more important task that takes priority

over getting a warrant. Our constitution provides protection from

“unreasonable” searches and seizures. But I find nothing in the Iowa

Constitution’s search and seizure protections that would require us to

adopt the Supreme Court’s difficult-to-administer rule from Mitchell to

ensure “reasonableness.” State v. Tyler, 830 N.W.2d 288, 294 (Iowa 2013)

(referring to reasonableness as “[t]he touchstone of the Fourth

Amendment” (alteration in original) (quoting United States v. Knights, 534

U.S. 112, 118, 122 S. Ct. 587, 591 (2001))); see also Kentucky v. King, 563

U.S. 452, 460, 131 S. Ct. 1849, 1856 (2011).

The “exigent circumstances” exception to the Fourth Amendment’s

warrant requirement applies when law enforcement’s need to prevent the

imminent destruction of evidence is so compelling that a warrantless

search is “objectively reasonable” under constitutional search and seizure

protections. State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011); see also

King, 563 U.S. at 460, 131 S. Ct. at 1856. In a drunk-driving investigation,

evidence erodes with each passing moment as alcohol dissipates naturally

from the driver’s bloodstream. State v. Johnson, 744 N.W.2d 340, 342–43

(Iowa 2008). The imminent destruction of evidence of suspected

intoxicated driving implicates the exigent-circumstances doctrine. Id.; see

also Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834

(1966).

28

But instead of holding simply that exigent circumstances exist to

conduct a blood draw of an unconscious driver suspected of alcohol

intoxication only if law enforcement’s to-do list contains some other

pressing tasks (as the plurality in Mitchell held), I would adopt the

reasoning of Justice Thomas’s concurring opinion that exigent

circumstances exist in these situations regardless of whatever other work

police officers might have on their plates. Mitchell, 588 U.S. at ___, 139

S. Ct. at 2539–40 (Thomas, J., concurring in judgment). Probative

evidence of intoxication dissipates at the same rate regardless of whether

a warrant application would interfere with an officer’s other

responsibilities. Id. at ___, 139 S. Ct. at 2540–41. The “other pressing

needs or duties” inquiry has nothing to do with whether probable cause

exists to support the unconscious driver’s blood draw. If a blood draw is

per se reasonable based on an officer’s finding of probable cause of

intoxicated driving when the police have other pressing duties, then there

should be an equal quantity of probable cause supporting the blood draw

when the police do not have other pressing duties.

Requiring a law enforcement officer dealing with an unconscious

driver to ponder and measure the fuzzy question “Just how pressing are

my other job responsibilities right now?” in deciding whether it’s necessary

to get a warrant will expose the officer to protracted second-guessing in

later court proceedings. In the relatively short time since Mitchell came

down, other jurisdictions have already started grappling with these

questions. See, e.g., McGraw v. State, 289 So. 3d 836, 839 (Fla. 2019)

(remanding for a determination of whether the search fell within the “other

pressing needs or duties” exception); State v. Chavez-Majors, 454 P.3d

600, 608 (Kan. 2019) (same); State v. Key, 848 S.E.2d 315, 321 (S.C. 2020)

(same). In some cases, the exercise required in Mitchell will allow evidence

29

essential to enforcement of intoxicated driving laws to erode while officers

assess their other pressing needs or wait for a warrant to issue.

And to what end? The “other pressing needs or duties” inquiry

comes with negligible upside for the protection of a suspect’s civil liberties.

When an officer attests to an unconscious driver’s suspected intoxication,

an overwhelming percentage of the time the court will find probable cause

exists and issue a warrant for the blood draw. We should not, and need

not, adopt as a matter of constitutional “reasonableness” the Mitchell

plurality’s complicated rule that secures virtually no protection against

unreasonable searches and seizures yet constrains enforcement of

intoxicated driving laws. As a matter of Iowa constitutional law, I would

thus hold that law enforcement’s investigation of an unconscious driver

suspected of alcohol intoxication meets the exigency exception to the

warrant requirement to permit a blood draw consistent with Iowa Code

section 321J.11 without the need for a warrant.

The majority decides this case under the Fourth Amendment of the

United States Constitution, and correctly so. When the Iowa Constitution

provides less protection than the Federal Constitution, government

officials must nonetheless comply with the more stringent provisions of

the Federal Constitution. I thus join the majority opinion but urge our

court to adopt, for purposes of Iowa’s constitutional search and seizure

protections, the straightforward per se rule described above in place of the

Mitchell plurality’s test.

Christensen, C.J., and Waterman, J., join this special concurrence.

30

#19–1219, State v. McGee

APPEL, Justice (dissenting).

I respectfully dissent. The preserved issue in this case is whether

Iowa’s implied-consent statute provides a constitutional justification for a

warrantless search of an unconscious driver suspected of drugged driving.

Because of the lack of voluntary consent, the unconstitutional nature of

the condition in the statute, and the similarity of the implied-consent

statute to a general warrant, I think the answer to this question is firmly

no under the search and seizure provision of article I, section 8 of the Iowa

Constitution, and alternatively, under the Fourth Amendment to the

United States Constitution.

The majority seeks a work-around to avoid the question regarding

Iowa’s implied-consent statute by answering a second question, namely,

whether the warrantless search in this case could be justified under a

modified version of the exigent-circumstances exception recently

developed by the United States Supreme Court in the case of Mitchell v.

Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2534–37 (2019).

There are two problems with the majority approach. First, the State

did not pursue the fact-bound exigent-circumstances exception before the

district court. As a result, the question is not preserved in this case. State

v. Baldon, 829 N.W.2d 785, 789–90 (Iowa 2013).

In any event, I would not adopt the innovations to the traditional

exigent-circumstances exception to the warrant requirement cobbled

together by a narrow majority of the United States Supreme Court in

Mitchell under the search and seizure provision of the Iowa Constitution.

As in this case, the question of exigent circumstances in Mitchell was not

raised below. Nonetheless, apparently to avoid the implied-consent issue

similar to the one in this case, the Mitchell Court announced modification

31

of the exigent-circumstances exception for purposes of the Fourth

Amendment in cases involving blood draws, without the benefit of briefs

of the parties or amici on the issue. In my view, by adopting Mitchell on

the unpreserved issue, the majority has uncritically adopted a flawed

Federal Court decision when a better model is available, specifically, the

approach of the Supreme Court only a few years earlier in Missouri v.

McNeely, 569 U.S. 141, 133 S. Ct. 1552 (2013).

Because the State loses on the merits of the only preserved claim, I

would reverse and remand the case to the district court. In the alternative,

if we were to consider the proposed reconstruction of the exigent-

circumstances exception to the warrant requirement under a second bite

of the apple theory, I would require on remand that the State prove what

it has always been required to prove under the exigent-circumstances

exception, namely, a compelling need and a showing that obtaining a

warrant in a timely fashion was impracticable. In caselaw shorthand, I

would follow the approach of the United States Supreme Court in McNeely,

and not that developed in Mitchell.

The majority suggests that a Mitchell-type approach is especially

necessary where drugged driving involving marijuana is involved. I view

Mitchell as objectionable for a host of reasons as will be explained below.

In my view, however, whether to adopt a new and specialized regime for

blood draws seeking evidence of marijuana consumption should await a

case where the record is fully developed both with respect to the toxicology

involved and the ability of the state to obtain a warrant.

The specific issues posed in this case might be characterized as quite

narrow, and, indeed they seem to be. But we have learned in search and

seizure law that it is very important to keep exceptions to the warrant

requirement narrow and disciplined. Or, to put it colloquially, in the law

32

of search and seizure, one thing leads to another. I write with some energy

to prevent erosion of search and seizure rights under article I, section 8 of

the Iowa Constitution.

I. Background.

A. Facts. This case involves a traffic accident that occurred on

December 8, 2018, at 1:59 p.m. in Des Moines. Brian McGee, a driver of

one of the vehicles, was taken to the hospital in an unconscious state.

About two hours after the accident, a Des Moines police officer, Tim Fricke,

asked a nurse for a certification that the patient was “in a condition

rendering [him] incapable of consent or refusal” under Iowa Code section

321J.7 (2018). The nurse signed the certification and a blood draw was

taken about ten minutes later. Just prior to the blood draw, McGee

aroused enough to urinate but then returned to bed. The results of the

blood draw showed traces of lorazepam and delta-tetrahydrocannabinol

(THC) along with the presence of both the impairing and nonimpairing THC

metabolites.

B. Motion to Suppress. McGee was charged with OWI, first

offense, in violation of Iowa Code section 321J.2. The trial information

charged McGee with two alternatives under the statute: driving while

under the influence and driving with any amount of a controlled substance

in his bloodstream.

McGee filed a motion to suppress, and argued the search was

conducted without a warrant and that under Iowa law, such a search is

unconstitutional absent a “jealously and carefully drawn exception.”

McGee argued that the blood draw in his case was not a search incident

to arrest, no exigent circumstances were present, and he did not consent

to the chemical testing.

33

The district court held a hearing on the motion to suppress on May 7

and 8, 2019. At the hearing, McGee asserted that the warrantless blood

draw was unconstitutional under the Fourth Amendment and article I,

section 8 of the Iowa Constitution. McGee argued that the blood draw was

a search, that the warrant requirement applied, and that the exigent

circumstances and consent exceptions to the warrant requirement did not

apply. McGee further argued that the blood draw was improper because

he had gained consciousness after the nurse had signed the certification

but prior to the blood draw. In addition, McGee asserted at the hearing

that it would violate equal protection to require a warrant in a case

involving a conscious driver but not in a case involving an unconscious

driver.

The State responded to McGee’s legal arguments by asserting that

the blood draw pursuant to the implied-consent scheme of Iowa Code

chapter 321J fell within the consent exception to the warrant requirement.

The State did not claim that the blood draw could be supported by the

exigent-circumstances or search-incident-to-arrest exceptions to the

warrant requirement.

The district court opened the hearing as follows:

[THE COURT:] The motion to suppress in general is

based on the warrantless taking of Mr. McGee’s blood in

violation of the Fourth Amendment of the United States

Constitution and Article 1, Section 8 of the Iowa Constitution.

That would appear to put the burden on the State to go

forward with the evidence. Are you in agreement with that,

Mr. Curry, or not?

MR. CURRY: Yes, your Honor.

Consistent with its stipulated burden, the State proceeded to offer

evidence at the hearing. The State’s first witness was Fricke, who was an

eleven-year veteran of the traffic unit at the time of the accident. His

34

training included attendance at the Advanced Roadside Impaired Driving

Enforcement program (ARIDE).

Fricke testified that he received a call regarding a serious injury

accident and that he was to proceed to the hospital to obtain testing of a

suspected impaired driver. Fricke testified regarding events at the

hospital, including the sedated condition of McGee and his obtaining a

certificate under Iowa Code section 321J.7 because the suspect was not

able to consent due to his medical condition.

On cross-examination, Fricke was asked about his failure to obtain

a warrant before the blood draw was taken. Below are all of the relevant

transcript passages on the issue of failure to obtain a warrant:

Q. Officer, was there anything preventing you from

getting a warrant in this case? A. No. This is a -- for an OWI

first that did not result in a fatality with this case, no.

Q. So you concede that you could have obtained a

warrant, correct? A. I don’t believe that you can get a warrant

for a first offense for an OWI.

Q. Do you think that the procurement of a warrant

depends on the number of offense on the OWI, that’s your

understanding? A. My understanding is that for an OWI first

that does not result in a serious injury or a traffic fatality, that

I would not be able to get a warrant for that.

....

Q. You wouldn’t dispute though the legal certainty that

you can get a warrant based on probable cause, correct?

A. No, I don’t dispute that.

Q. But you didn’t get a warrant here? A. I did not.

....

Q. Now, officer, one further point from the video, you

would agree that blood was withdrawn at 1610, correct?

A. That’s correct.

Q. And at that time you did not have a warrant,

correct? A. I did not.

35

Q. You hadn’t made any efforts to procure a warrant,

is that correct? A. No.

Q. You didn’t think you needed one? A. No.

....

Q. As you began your OWI investigation, in that 30 to

40 minutes that it took you to get to the hospital, did you

make any efforts during that time to secure a warrant? A. No.

Q. How about in terms of the officer that initially called

you, did you instruct that officer to make efforts to secure a

warrant? A. No.

....

Q. Did you instruct that officer, the officer with whom

you spoke with at the hospital, to make any efforts to get a

warrant? A. No, I did not.

Q. And the officer that you spoke with at the hospital,

is that the officer who would have followed Brian to the

hospital, followed my client to the hospital? A. Yes.

Q. So I know I am kind of hammering it home. Safe to

say no one involved in this OWI investigation made any efforts

to procure a warrant, correct? A. Correct.

Fricke was also examined about the passage of twelve minutes

between the signing of the certificate by medical personnel and the actual

blood draw. The defense offered into evidence a video of officer Fricke’s

body camera that showed McGee arising from his bed and urinating during

this time frame.

Aside from the testimony of Fricke and the admission of the

certification, the State offered no further evidence. The defense rested

without the introduction of evidence.

At the close of evidence, the district court heard oral arguments from

the parties. The State argued that “implied consent is an exception to the

warrant requirement.” According to the State, the provision of Iowa Code

section 321J.7 (providing a certification process where a driver is

incapable of consent) is “the crux of the case before the court today.” The

36

State argued that once a certification pursuant to Iowa Code section

321J.7 is obtained, “[t]here is nothing more needed.” The State closed its

argument by emphasizing that “[t]he scheme itself[, Iowa Code section

321J.7,] is [the] exception.”

McGee argued that the implied-consent statute did not provide a

basis for a warrantless blood draw. According to McGee, “the person who

is asked to provide consent must be able to provide consent and when you

have someone who is by definition incapable of providing consent, you

cannot proceed under a consent-based exception.” McGee further argued

that if the implied-consent provisions of Iowa Code section 321J.7 were a

stand-alone exception to the warrant requirement, a serious equal

protection argument would be raised. According to McGee, conscious

persons would be entitled to the protection of the warrant requirement,

while unconscious persons would not. McGee also attacked the

certification in the case in light of the twelve-minute gap and the video

showing that McGee arose and urinated after the certification was

executed.

At the conclusion of the hearing, the district court denied the motion

from the bench. The district court found that 321J cases are an “exception

to the warrant requirement.” The district court further held that the State

met its burden of showing that the statutory requirements of section

321J.7 were met and that there was no requirement of recertification

because of the delay in obtaining the blood draw. The district court

explicitly stated that the testimony of Fricke regarding whether he could

get a warrant was “immaterial to this matter as none was required.” The

district court concluded that the State had met its burden of showing that

the requirements of 321J were properly complied with by a preponderance

of the evidence and, as a result, the motion to suppress was denied.

37

The district court did not discuss, and made no factual findings

regarding, the possible application of the exigent-circumstances exception

to the warrant requirement—a claim that the State did not make before

the district court.

C. Trial on the Minutes. After the motion to suppress was denied,

the parties agreed to a bench trial on the minutes of testimony. The

district court convicted McGee under the alternative of the statute that

prohibited driving with any trace of a controlled substance, see Iowa Code

§ 321J.2(1)(c). The district court concluded, however, that there was

insufficient evidence to support a conviction on driving under the

influence, see id. § 321J.2(1)(a).

D. Issues Raised on Appeal. McGee appealed his conviction. On

appeal, McGee contends that a warrant to draw blood was required under

both the Fourth Amendment to the United States Constitution and

article I, section 8 of the Iowa Constitution. He attacks head-on the

district court’s conclusion that the certification provisions of Iowa Code

section 321J.7 provides an exception to the warrant requirement.

McGee asserts that any claim that the evidence was admissible

under the exigent-circumstances exception was not relied upon by the

State and was thus not preserved. In the alternative, however, McGee

asserts that exigent circumstances were not demonstrated in this case.

McGee again asserted that any approach that permitted a conscious

person to insist on a warrant but denied the same right to an unconscious

person would violate equal protection. Finally, McGee raises the statutory

assertion that the terms of Iowa Code section 321J.7 were not complied

38

with because of the approximately twelve-minute delay between the

certification and the blood draw.11

II. Overview of Applicable Search and Seizure Principles.

A. Introduction. In considering any important legal issue, it is

important to establish the legal context. By legal context I mean the larger

environment of concepts and principles that touch upon and relate to the

specific question at hand. If we immediately “cut to the chase,” we may

decide a case that is at odds with the larger legal environment. Further,

our caselaw will become transactional, result-oriented, less coherent, and

provoke unintended consequences. Only when the general legal principles

governing search and seizure are canvassed and understood can we drill

down and apply those general principles to the specific issue at hand.

Below is a summary of the legal principles that set the framework

for the decision in this case. The concepts presented below have a

relatively high degree of generality. I have made no attempt to compare or

contrast the potentially different doctrines of search and seizure under the

Iowa Constitution compared to the Fourth Amendment. We are free, of

course, to depart from federal caselaw under the Fourth Amendment when

interpreting the search and seizure provisions of the Iowa Constitution.

B. Generally Applicable Constitutional Principles of Search and

Seizure.

1. The purpose of search and seizure law is to protect individuals

from overreaching government action. As is apparent from the history of

search and seizure law, the purpose of the constitutional protections is to

prevent governmental overreach. Search and seizure law is designed to

11On appeal, McGee claimed that under the statute his prior certification was no

longer valid after a twelve-minute delay and that the results of the blood draw should be

suppressed on statutory grounds. On this point, I concur with the majority opinion

rejecting McGee’s claim.

39

draw boundaries around permissible government action. Constitutional

protections against unlawful searches and seizures are not a minor

inconvenience but play a crucial role in our constitutional governance by

drawing lines that protect individuals from arbitrary government invasions

of their privacy and dignity. As noted by Justice Jackson after his return

from Nuremberg, 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).

It is true that search and seizure restrictions complicate the job of

law enforcement. But as noted by one state court, “Duties of law

enforcement officials are extremely demanding in a free society. But that

is as it should be. A policeman’s job is easy only in a police state.” People

v. Spinelli, 315 N.E.2d 792, 795 (N.Y. 1974).

Our Iowa constitutional history demonstrates the importance of bill

of rights protections against government overreach. George Ells, Chair of

the Committee on the Preamble and Bill of Rights, declared, “[T]he 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.” 1 The Debates of the Constitutional Convention

of the State of Iowa, 103 (W. Blair Lord rep. 1857),

http://www.statelibraryofiowa.org/services/collections/law-library/iaconst.

Ells cautioned that “[t]he annals of the world . . . furnish many instances

in which the freest and most enlightened governments that have ever

existed upon earth, have been gradually undermined, and actually

40

destroyed, in consequence of the people’s rights.” Id. at 100–01. In order

to protect the nascent state democracy, Ells stated the express desire

to put upon record every guarantee that could be legitimately

placed [in the constitution] in order that Iowa not only might

be the first State in the Union, unquestionably as she is in

many respects, but that she might also have the best and

most clearly defined Bill of Rights.

Id. at 100. Of course, article I, section 8 of the Iowa Constitution provides:

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable seizures

and searches shall not be violated; and no warrant shall issue

but on probable cause, supported by oath or affirmation,

particularly describing the place to be searched, and the

persons and things to be seized.

Given the importance of the search and seizure provisions of the

United States and Iowa Constitutions, they are not designed to be efficient.

Without question, in all cases, they make the ability of the state law

enforcement to engage in searches and seizures somewhat less efficient.

But that is true with many precious rights. The right to a jury trial, with

careful procedures to ensure representation of a fair cross section of the

community in jury panels, is hardly efficient. So, the importance or value

of a constitutional protection is not determined by efficiency

considerations. Indeed, by placing the protections in the constitutional

firmament, the founders desired to ensure that specifically enumerated

constitutional rights remained firmly entrenched notwithstanding their

inefficient characteristics. The scope of the bill of rights was not to be

subject to periodic pragmatic adjustments by the legislature.

2. The generally applicable bright-line search and seizure rule is “get

a warrant.” Like its federal counterpart, article I, section 8 of the Iowa

Constitution has a “reasonableness” clause and a “warrant clause.” We

have repeatedly stated that the reasonableness clause is informed by or

41

linked to the warrant clause. See, e.g., State v. Ochoa, 792 N.W.2d 260,

268–69 (Iowa 2010). In other words, subject to certain narrow exceptions,

the general rule is that a warrant is required to conduct a search or

seizure. Id. at 269.

The strong warrant preference approach was outlined decades ago

by the United States Supreme Court in Coolidge v. New Hampshire:

[T]he most basic constitutional rule in this area is that

“searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few

specifically established and well delineated exceptions.” The

exceptions are “jealously and carefully drawn,” and there

must be “a showing by those who seek exemption . . . that the

exigencies of the situation made that course imperative.”

403 U.S. 443, 454–55, 91 S. Ct. 2022, 2032 (1971) (omission in original)

(footnotes omitted) (first quoting Katz v. United States, 389 U.S. 347, 357,

88 S. Ct. 507, 514 (1967); then quoting Jones v. United States, 357 U.S.

493, 499, 78 S. Ct. 1253, 1257 (1958); and then quoting McDonald v.

United States, 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948)).

While the United States Supreme Court cases began to undercut the

tradition of the warrant requirement in cases like Griffin v. Wisconsin, 483

U.S. 868, 107 S. Ct. 3164 (1987), United States v. Knights, 534 U.S. 112,

122 S. Ct. 587 (2001), and Samson v. California, 547 U.S. 843, 126 S. Ct.

2193 (2006), there seems to have been a resurgence in at least some

Supreme Court cases. In a memorable recent phrase, Chief Justice John

Roberts declared in a search and seizure context that the applicable

approach, at least in the case at hand, was to “get a warrant.” Riley v.

California, 573 U.S. 373, 403, 134 S. Ct. 2473, 2495 (2014).

Our cases demonstrate that “get a warrant” is the general command

of the search and seizure provisions of article I, section 8 of the Iowa

Constitution, subject to certain exceptions. E.g., State v. Coleman, 890

42

N.W.2d 284, 286 (Iowa 2017). We have stated that Iowa courts “strongly

favor the warrant requirement, subject only to ‘jealously and carefully

drawn exceptions.’ ” Id. (quoting State v. Strong, 493 N.W.2d 834, 836

(Iowa 1992)); see also State v. Gaskins, 866 N.W.2d 1, 7 (Iowa 2015) (“ ‘A

warrantless search is presumed unreasonable’ unless an exception

applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997)));

Ochoa, 792 N.W.2d 260, 285 (“We have also generally endorsed the

warrant-preference requirement.”).

3. The generally applicable bright-line “get a warrant” rule is subject

to narrow and well-defined exceptions that should be “jealously guarded”

against even small incursions. “[T]he basic rule [is] that ‘searches

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated

exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716

(2009) (quoting Katz, 389 U.S. at 357, 88 S. Ct. at 514). Although the

general rule is get a warrant, we have recognized that there are certain

exceptions to the warrant requirement. Two exceptions to the warrant

requirement are consent and exigent circumstances.

These exceptions, however, must be tightly controlled lest they

overcome the general rule that search warrants are required. The risk of

encroachment was recognized by the Supreme Court in its first major

search and seizure case, Boyd v. United States, 116 U.S. 616, 633–35,

6 S. Ct. 524, 534–35 (1886). In Boyd, the Court declared:

[C]onstitutional provisions for the security of person and

property should be liberally construed. A close and literal

construction deprives them of half their efficacy, and leads to

gradual depreciation of the right, as if it consisted more in

sound than in substance. It is the duty of courts to be

43

watchful for the constitutional rights of the citizen, and

against any stealthy encroachments thereon.

Id. at 635, 6 S. Ct. at 535.

And, as stated by Justice Jackson in his classic discussion of search

and seizure law, “any privilege of search and seizure without warrant” will

be “push[ed] to the limit.” Brinegar, 338 U.S. at 182, 69 S. Ct. at 1314

(Jackson, J., dissenting). As observed in Almeida-Sanchez v. United

States: “The needs of law enforcement stand in constant tension with the

Constitution’s protections of the individual against certain exercises of

official power. It is precisely the predictability of these pressures that

counsels a resolute loyalty to constitutional safeguards.” 413 U.S. 266,

273, 93 S. Ct. 2535, 2540 (1973).

Any exceptions to the warrant requirement thus must be “jealously

and carefully drawn” and subject to strict judicial oversight. Jones, 357

U.S. at 499, 78 S. Ct. at 1257. As noted by Justice Stevens, “The

ascendancy of the warrant requirement in our system of justice must not

be bullied aside by extravagant claims of necessity.” California v. Carney,

471 U.S. 386, 401, 105 S. Ct. 2066, 2075 (1985) (Stevens, J., dissenting).

4. The taking of a blood draw by the state is a search involving

invasions of a person’s most personal and deeply rooted expectations of

privacy. There is no serious doubt that the taking of a blood draw is a

search. See, e.g., Birchfield v. North Dakota, 579 U.S. ___, ___, 136 S. Ct.

2160, 2173 (2016). It involves an invasion of “an individual’s ‘most

personal and deep-rooted expectations of privacy.’ ” McNeely, 569 U.S. at

148, 133 S. Ct. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760, 105

S. Ct. 1611, 1616 (1985)). A blood draw places in the hands of the state a

very large amount of private medical facts, for instance, whether a person

“is epileptic, pregnant, or diabetic.” See Skinner v. Ry. Lab. Execs., 489

44

U.S. 602, 617, 109 S. Ct. 1402, 1413 (1989). Just as a cell phone is now

a repository of huge amounts of personal information, the materials

obtained in a blood draw can tell us many highly personal things about

the individual. See State v. Martines, 331 P.3d 105, 111 (Wash. Ct. App.

2014) (“Testing of a blood sample can reveal not only evidence of

intoxication, but also evidence of disease, pregnancy, and genetic family

relationships or . . . [other] ‘private medical facts.’ ” (quoting Skinner, 489

U.S. at 617, 109 S. Ct. at 1413)). Because of the invasive nature of the

intrusion and the vast amount of private information that is subject to

exposure, a blood test presumptively requires a search warrant based on

probable cause. See McNeely, 569 U.S. at 148, 152, 133 S. Ct. at 1558,

1561.

5. When applying the narrow and well-defined exceptions to the

warrant requirement, per se rules are disfavored. As a general proposition,

exceptions to the warrant requirement are fact-based, not rule-based. The

determination of whether a warrantless search meets a narrow and

jealously guarded exception is not subject to “Procrustean application” of

reasonability. Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 1630

(1963). “[T]here is no formula for the determination of reasonableness.

Each case is to be decided on its own facts and circumstances.” Id.

(quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51

S. Ct. 153, 158 (1931)). Thus, the Supreme Court has stated “that for the

most part per se rules are inappropriate in the Fourth Amendment

context.” United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105,

2111 (2002). As noted in United States v. Banks,

[T]he facts of cases so various that no template is likely to

produce sounder results than examining the totality of

circumstances in a given case; it is too hard to invent

categories without giving short shrift to details that turn out

45

to be important in a given instance, and without inflating

marginal ones.

540 U.S. 31, 36, 124 S. Ct. 521, 525 (2003). This observation applies in

the context of determining whether a warrantless search may be justified

based on a narrow and jealously guarded exception.

6. The burden is on the state to show the circumstances necessary

to support the narrow exceptions to the “get a warrant” requirement. In

applying exceptions to the warrant requirement, the burden is on the state

to show that an exception applies. See Coolidge, 403 U.S. at 454–55, 91

S. Ct. at 2032; Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 1972

(1970).

The rationale for placing the burden with the state is double-

barreled. First, as a general matter, the party seeking an exception to a

general rule carries the burden of proof. See Welsh v. Wisconsin, 466 U.S.

740, 749–50, 104 S. Ct. 2091, 2097 (1984) (stating that the government

bears a “heavy burden” to show exigent circumstances). Second, the

evidence that might support the fact-intensive features of the exception

rests with the state. Cf. United States v. N.Y., New Haven & Hartford R.R.,

355 U.S. 253, 256 n.5, 78 S. Ct. 212, 214 n.5 (1957) (“The ordinary rule,

based on considerations of fairness, does not place the burden upon a

litigant of establishing facts peculiarly within the knowledge of his

adversary.”). With these two well-established principles related to

allocation of the burden of proof, it would be odd indeed to shift the burden

of proof to a defendant to establish that the exception does not apply.

7. A warrant is not required under the “jealously and carefully”

applied concept of voluntary consent. For many years, the Supreme Court

had not discovered a consent doctrine to avoid the warrant requirement.

However, in Bumper v. North Carolina, the Supreme Court stated, “When

46

a prosecutor seeks to rely upon consent to justify the lawfulness of a

search, he has the burden of proving that the consent was, in fact, freely

and voluntarily given.” 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968).

The Supreme Court elaborated on the consent doctrine in Schneckloth v.

Bustamonte, noting that “whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express or implied, is

a question of fact to be determined from the totality of all the

circumstances.” 412 U.S. 218, 227, 93 S. Ct. 2041, 2047–48 (1973). Just

as an unconscious person cannot consent to sexual relations, Schneckloth

recognized that if “a person is unconscious or drugged or otherwise lacks

capacity for conscious choice,” there can be no voluntary consent. Id. at

224, 93 S. Ct. at 2046 (quoting Paul M. Bator & James Vorenberg, Arrest,

Detention, Interrogation and the Right to Counsel: Basic Problems and

Possible Legislative Solutions, 66 Colum. L. Rev. 62, 72 (1966)). And, if an

individual is told he has no right to resist the search, the resulting search

is not a result of voluntary consent. See Bumper, 391 U.S. at 548–49, 88

S. Ct. at 1791–92.

The consent doctrine has been characterized by the Supreme Court

as “jealously and carefully drawn.” Georgia v. Randolph, 547 U.S. 103,

109, 126 S. Ct. 1515, 1520 (2006) (quoting Jones, 357 U.S. at 499, 78

S. Ct. at 1257); see also State v. Lowe, 812 N.W.2d 554, 572 (Iowa 2012)

(“The State has the burden to prove the consent was voluntary, and

voluntariness is a ‘question of fact to be determined from the totality of all

the circumstances.’ ‘The State is required to establish the consent was

voluntary by a preponderance of the evidence.’ ” (citations omitted) (first

quoting State v. Lane, 726 N.W.2d 371, 378 (Iowa 2007); and then quoting

State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001) (en banc))). Plainly,

consent is not created by law—it arises from facts.

47

Once given, however, consent to search may be withdrawn. Florida

v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 1804 (1991) (“A suspect

may of course delimit as he chooses the scope of the search to which he

consents.”); see also 4 Wayne R. LaFave, Search & Seizure: A Treatise on

the Fourth Amendment § 8.2(f), at 124 (6th ed. 2020) (“A consent to search

is not irrevocable, and thus if a person effectively revokes his prior consent

prior to the time the search is completed, then the police may not

thereafter search in reliance upon the earlier consent.” (footnote omitted)).

The right to revoke consent to search is consistent with other areas of the

law where consent may be revoked. See, e.g., Miranda v. Arizona, 384 U.S.

436, 469–79, 8 S. Ct. 1602, 1625–30 (1966) (describing that there is a

right to revoke waiver of the right to counsel). The state has the burden of

proving that consent had been “freely and voluntarily given.” Bumper, 391

U.S. at 548–50, 88 S. Ct. at 1792.

A number of state courts have rejected the Schneckcloth “totality of

the circumstances” test in favor of the more stringent standard of knowing

and voluntary waiver announced in Johnson v. Zerbst, 304 U.S. 458, 464–

69, 58 S. Ct. 1019, 1023–25 (1938). In State v. Pals, we found it

unnecessary to address the question of a more stringent standard under

article I, section 8 of the Iowa Constitution. 805 N.W.2d 767, 782 (Iowa

2011). Both tests, however, are fact-based and must be determined in

each individual case.

8. Exigent circumstances have been recognized as a narrow and

jealously guarded exception to the warrant requirement where the state

makes a factual showing of compelling need and obtaining a warrant is

impracticable. The exigent-circumstances exception applies where “ ‘the

exigencies of the situation’ make the needs of law enforcement so

compelling that [a] warrantless search is objectively reasonable under the

48

Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct.

1849, 1856 (2011) (alteration in original) (quoting Mincey v. Arizona, 437

U.S. 385, 394, 98 S. Ct. 2408, 2414 (1978)). In order to invoke the exigent-

circumstances exception, the state must show a “compelling need for

official action and no time to secure a warrant.” Michigan v. Tyler, 436

U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978).

The exigent-circumstances exception has been applied where police

need to provide help to a “seriously injured” occupant of a house or there

is an imminent threat of such injury to that person, Brigham City v. Stuart,

547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006), when officers are in “hot

pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–

43, 96 S. Ct. 2406, 2409–10 (1976), and to enter a burning building to put

out a fire, Tyler, 436 U.S. at 509, 98 S. Ct. at 1950. The threat of

destruction of evidence may give rise to exigent circumstances. See

Santana, 547 U.S. at 43, 96 S. Ct. at 2410.

Like other exceptions to the warrant requirement, the state bears

the burden of proof on the exigent-circumstances exception. See, e.g.,

Welsh, 466 U.S. at 749–50, 104 S. Ct. at 2097. The warrant requirement

cannot be excused absent a showing that “the exigencies of the situation

made [the search] imperative.” McDonald, 335 U.S. at 456, 69 S. Ct. at

193.

9. Administrative convenience can never by itself justify disregard of

search and seizure principles. In Johnson v. United States, the Supreme

Court observed that “the inconvenience to the officers and some slight

delay necessary to prepare papers and present the evidence to a

magistrate[] . . . are never very convincing reasons and, in these

circumstances, certainly are not enough to bypass the constitutional

requirement [of a warrant].” 333 U.S. 10, 15, 68 S. Ct. 367, 369 (1948).

49

A few years later, the Supreme Court stated that the warrant requirement

was not “an inconvenience to be somehow ‘weighed’ against the claims of

police efficiency.” Coolidge, 403 U.S. at 481, 91 S. Ct. at 2046. And, in

Mincey v. Arizona, the Supreme Court again emphasized that “the mere

fact that law enforcement may be made more efficient can never by itself

justify disregard of the Fourth Amendment.” 437 U.S. at 393, 98 S. Ct. at

2414. Obviously, “the investigation of crime would always be simplified if

warrants were unnecessary.” Id. But, “the Constitution recognizes higher

values than speed and efficiency.” Stanley v. Illinois, 405 U.S. 645, 656,

92 S. Ct. 1208, 1216 (1972).

10. The Iowa Supreme Court “zealously” protects authority to engage

in independent search and seizure analysis. It is well established that a

state supreme court has the ultimate authority to determine the meaning

of state constitutional provisions and that there is no obligation to simply

follow federal precedent even where the federal and state constitutional

provisions are nearly identical. We have departed from federal search and

seizure precedents on a number of occasions. See, e.g., State v. Ingram,

914 N.W.2d 794, 799–801, 820–21 (Iowa 2018); State v. Short, 851 N.W.2d

474, 492, 506 (Iowa 2014); Baldon, 829 N.W.2d at 790–91, 802–03; Ochoa,

792 N.W.2d at 267; State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000). We

have stated that we zealously reserve the right to engage in independent

analysis. See, e.g., Ochoa, 792 N.W.2d at 267; Zaber v. City of Dubuque,

789 N.W.2d 634, 654–55 (Iowa 2010); State v. Hoskins, 711 N.W.2d 720,

725 (Iowa 2006). This court has canvassed in detail the rationale for

independent state constitutional analysis and that need not be reprised in

detail here. See, e.g., Short, 851 N.W.2d at 481–92; Baldon, 829 N.W.2d

at 789–91; Ochoa, 792 N.W.2d at 264–68.

50

C. Statutory Provisions of Iowa Code Chapter 321J. Iowa Code

chapter 321J, entitled “Operating While Intoxicated,” has various

statutory provisions relating directly to the authority of police officers to

obtain warrantless blood draws of nonconsenting persons. The provisions

relate to implied consent, the testing of dead or unconscious persons, the

consequences of refusal to submit to testing, written or telephonic search

warrants, and obtaining samples without a warrant. See Iowa Code

§§ 321J.6, .7, .9, .10, .10A.

Three provisions are particularly germane to this case. Iowa Code

section 321J.6 provides that “a person who operates a motor vehicle in

this state . . . is deemed to have given consent to the withdrawal of

specimens of the person’s blood . . . for the purpose of determining the

alcohol concentration or presence of a controlled substance or other

drugs.”

Iowa Code section 321J.7 provides that “a person who is dead,

unconscious, or otherwise in a condition rendering the person incapable

of consent or refusal is deemed not to have withdrawn the consent

provided by section 321J.6.”

Iowa Code section 321J.10 provides for, among other things,

telephonic warrants where “[a] traffic accident has resulted in a death or

personal injury reasonably likely to cause death.”

Iowa Code section 321J.10A states that a police officer may obtain

a sample without a warrant if the person is under arrest for operating a

vehicle unlawfully and the police “officer reasonably believes the blood

drawn will produce evidence of intoxication,” the method used is

reasonable and “performed in a reasonable manner,” and the officer

“reasonably believes the officer is confronted with an emergency situation

51

in which the delay necessary to obtain a warrant . . . threatens the

destruction of the evidence.”

III. Overview of Applicability of the Warrant Requirement for

Bodily Intrusions of Unconscious Suspects.

A. Introduction. Having examined the generally applicable search

and seizure principles and relevant statutory provisions, I now consider

whether the state may engage in warrantless blood draws of unconscious

persons either based on “implied consent” (i.e., implied by law under

Iowa’s implied-consent statute) or based on exigent circumstances that

make application for a warrant impracticable.

Before diving into the caselaw, it is important to distinguish between

two distinctly different consent issues under implied-consent laws. The

first question is whether actual consent given by a suspect pursuant to an

implied-consent statute is “voluntary” under search and seizure law. That

was a key issue in State v. Pettijohn, 899 N.W.2d 1, 25–38 (Iowa 2017), and

has proven controversial. There is authority in the cases that tends to

indicate that the state may place some level of pressure on a suspect to

obtain consent for a blood draw, but there is a question of where to draw

the line. Some courts, including recently the United States Supreme

Court, have determined that consent is not involuntary for Fourth

Amendment purposes if the consequence of refusal is an administrative

penalty and not a criminal sanction. See, e.g., Birchfield, 579 U.S. at ___,

136 S. Ct. at 2185; McNeely, 569 U.S. at 159–61, 133 S. Ct. at 1565–66.

In Pettijohn, the majority considered whether “implied consent” to a blood

draw obtained by law enforcement without a warrant was voluntary.

Pettijohn, 899 N.W.2d at 25–38. For the purposes of a boating implied-

consent statute, consent was not deemed voluntary in light of

52

administrative sanctions imposed by the statute and other relevant

factors. Id. at 29, 36–38.

While the fact-based question in Pettijohn involved, in part, whether

the civil sanctions threated by Iowa’s implied-consent statute applicable

to boating rendered the consent involuntary, the issue in this case is

whether the State can “deem” a driver consented to waiver of search and

seizure rights by merely driving on the roads of the state.

B. United States Supreme Court Precedent Regarding

Unconsented and Warrantless Bodily Invasions by the State. The trail

of United States Supreme Court cases dealing with blood draws begins

with two due process cases. In Rochin v. California, law enforcement

forcibly broke into the home of the accused and observed him place

something in his mouth. 342 U.S. 165, 166, 72 S. Ct. 205, 206 (1952).

The police unsuccessfully tried to pry the material out of his mouth. Id.

The officers then took the accused to the hospital where a doctor pumped

the suspect’s stomach without his consent. Id. The pumping succeeded

and the suspect regurgitated narcotic pills. Id. The Rochin Court

concluded that the coerced body invasion “shocks the conscience” and was

“too close to the rack and the screw” to avoid condemnation under the Due

Process Clause. Id. at 172, 72 S. Ct. at 209–10.

In a second due process case, Breithaupt v. Abram, the Supreme

Court considered the validity of a manslaughter conviction based, in part,

on a blood draw obtained from an unconscious defendant without a

warrant after a traffic accident. 352 U.S. 432, 433, 77 S. Ct. 408, 409

(1957). The Breithaupt majority rejected a due process challenge to the

search on the merits, concluding that blood draws were not “brutal” or

“offensive.” Id. at 435, 77 S. Ct. at 410. With respect to a potential search

and seizure violation, the Breithaupt Court held that no relief was available

53

because the exclusionary rule was not incorporated against the states

under the Fourteenth Amendment. Id. at 434, 77 S. Ct. 409–10 (citing

Wolf v. Colorado, 338 U.S. 25, 33, 69 S. Ct. 1359, 1364 (1949)).

Chief Justice Warren, joined by Justice Black and Justice Douglas,

dissented. The Chief Justice found little meaningful difference between a

stomach pump and an invasion of the skin through a needle. Id. at 440–

42, 77 S. Ct. at 412–14 (Warren, C.J., dissenting). The searches in both

Rochin and Breithaupt were involuntary. Id. The fact that Rochin was able

to physically resist, while Breithaupt could not, was not consequential. Id.

In a separate dissent, Justice Douglas, joined by Justice Black, observed

that the indignity of an invasion is the same whether a person is conscious

or unconscious. Id. at 442–44, 77 S. Ct. at 414 (Douglas, J., dissenting).

In Schmerber v. California, the Supreme Court considered the

validity of a blood draw taken involuntarily from an arrested but

hospitalized driver without a warrant. 384 U.S. 757, 758–59, 86 S. Ct.

1826, 1829 (1966). The defendant challenged the blood draw on Fourth

and Fifth Amendment grounds. Id. at 759, 86 S. Ct. at 1829.

By a narrow 5–4 margin, the Schmerber Court sustained the

warrantless blood draw as a search incident to arrest. Id. at 770–71, 86

S. Ct. at 1835–36. The Schmerber majority emphasized that ordinarily the

involvement of a “neutral and detached magistrate” is required before

allowing a law enforcement officer to “invade another’s body in search of

evidence of guilt is indisputable and great.” Id. at 770, 86 S. Ct. at 1835

(quoting Johnson, 333 U.S. at 14, 68 S. Ct. at 369).

Nonetheless, the Schmerber majority emphasized that the officer

reasonably believed, under the circumstances, that there was a threatened

“destruction of evidence” based on the elimination of alcohol from the

accused’s system. Id. at 769, 86 S. Ct. at 1835. The Schmerber Court

54

stated that “[p]articularly in a case such as this, where time had to be

taken to bring the accused to a hospital and to investigate the scene of the

accident, there was no time to seek out a magistrate and secure a

warrant.” Id. at 770–71, 86 S. Ct. at 1836. The majority explained that

the police officer “might reasonably have believed that he was confronted

with an emergency, in which the delay necessary to obtain a warrant,

under the circumstances, threatened ‘the destruction of evidence.’” Id. at

770, 86 S. Ct. at 1835 (quoting Preston v. United States, 376 U.S. 364,

367, 84 S. Ct. 881, 883 (1964)).

Yet, the Schmerber Court did not want to give law enforcement

sweeping authority or permit warrantless, unconsented bodily intrusions.

According to the Schmerber majority:

It bears repeating, however, that we reach this judgment only

on the facts of the present record. The integrity of an

individual’s person is a cherished value of our society. That

we today hold that the Constitution does not forbid the States

minor intrusions into an individual’s body under stringently

limited conditions in no way indicates that it permits more

substantial intrusions, or intrusions under other conditions.

Id. at 772, 86 S. Ct. at 1836.

Chief Justice Warren, Justice Black, and Justice Douglas dissented

on Fifth Amendment grounds. Id. at 773, 86 S. Ct. at 1837 (Warren, C.J.,

dissenting). Justice Douglas separately dissented on Fourth Amendment

grounds. Id. at 778, 86 S. Ct. at 1839–40 (Douglas, J., dissenting). He

was having none of it. He wrote that “the Fourth Amendment . . .

guarantees the right of the people to be secure ‘in their persons.’ No clearer

invasion of this right of privacy can be imagined than forcible bloodletting

of the kind involved here.” Id. at 778–79, 86 S. Ct. at 1840 (citation

omitted) (quoting U.S. Const., amend. IV).

55

In 2013, the Supreme Court in McNeely, returned to the question of

unconsented blood draws. 569 U.S. 141, 133 S. Ct. 1552. In McNeely, a

speeding driver crossed the center line and was stopped by a police officer.

Id. at 145–46, 133 S. Ct. at 1556–57. The driver declined a preliminary

blood test and was taken to a nearby hospital for a blood draw. Id. The

police officer never attempted to secure a warrant. Id. The state trial court

granted a motion to suppress, concluding that there were no exigent

circumstances justifying the warrantless search. Id. The state supreme

court agreed, finding that there were no factors justifying a warrantless

search other than the natural dissipation of blood alcohol and that

dissipation alone was insufficient to meet the exigent-circumstances

exception to the warrant requirement. Id. at 147, 133 S. Ct. at 1557. On

appeal to the Supreme Court, the state urged the adoption of a per se rule

for intoxicated driving, namely, that exigent circumstances are always

present in drunk-driving cases due to the dissipation of alcohol from the

blood stream. Id. at 151–52, 133 S. Ct. at 1560.

The Supreme Court was fractured in McNeely. Writing for a

majority, Justice Sotomayor rejected the state’s per se rule for suspected

drunk drivers. Id. at 165, 133 S. Ct. at 1568. Justice Sotomayor

repeatedly emphasized the fact-based nature of the inquiry. Id. at 150–

51, 133 S. Ct. at 1559–60. She noted that Schmerber relied on “special

facts.” Id. (quoting Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836). She

canvassed Fourth Amendment caselaw that demonstrated each case must

be evaluated based on the facts and circumstances of the particular case.

Id. at 148–51, 133 S. Ct. at 1558–60. According to Justice Sotomayor:

In short, while the natural dissipation of alcohol in the

blood may support a finding of exigency in a specific case . . .

it does not do so categorically. Whether a warrantless blood

test of a drunk-driving suspect is reasonable must be

56

determined case by case based on the totality of the

circumstances.

Id. at 156, 133 S. Ct. at 1563. Further, citing McDonald v. United States,

333 U.S. at 456, 69 S. Ct. at 193, Justice Sotomayor emphasized that law

enforcement could not create their own exigent circumstances to evade the

warrant requirement. Id. at 152–53, 133 S. Ct. at 1561.

Finally, Justice Sotomayor noted that a sizeable majority of the

states now have various remote methods, such as telephone, radio, email,

and video conference, to apply for search warrants. Id. at 154–55, 133

S. Ct. at 1561–62. The Chief Justice noted in his opinion concurring in

part and dissenting in part that judges often issue warrants in five to

fifteen minutes. Id. at 173, 133 S. Ct. at 1573 (Roberts, C.J., concurring

in part and dissenting in part).

A few years after McNeely, the Supreme Court, in Birchfield v. North

Dakota, considered a challenge to a search where the suspect consented

only after being informed of the consequences of failure to consent under

a state’s implied-consent law. 579 U.S. at ___, 136 S. Ct. at 2185–86. The

question in Birchfield was whether, under the totality of circumstances,

the consent obtained by law enforcement could be considered voluntary

for purposes of the Fourth Amendment and therefore excuse the state from

obtaining a warrant prior to the search. Id. at ___, 136 S. Ct. at 2186–87.

The Birchfield Court distinguished between blood tests and breath

tests. Id. at ___, 136 S. Ct. at 2176–78. The Birchfield Court found that

unlike breath tests, blood tests “implicat[e] significant privacy concerns.”

Id. at ___, 136 S. Ct. at 2178 (alteration in original) (quoting Skinner, 489

U.S. at 626, 109 S. Ct. at 1418). The Birchfield Court also noted that “a

blood test, unlike a breath test, places in the hands of law enforcement

authorities a sample that can be preserved and from which it is possible

57

to extract information beyond a simple [blood alcohol] reading.” Id. at ___,

136 S. Ct. at 2178. The Birchfield Court further observed,

It is true that a blood test, unlike a breath test, may be

administered to a person who is unconscious . . . . But we

have no reason to believe that such situations are common in

drunk-driving arrests, and when they arise, the police may

apply for a warrant if need be.

Id. at ___, 136 S. Ct. at 2184–85.

The Birchfield Court concluded that the state could not establish

voluntary consent for a blood draw through its implied-consent laws if the

consequence of refusal to submit to a blood test was committing a criminal

offense. Id. In short, the Birchfield Court permitted the state, through its

implied-consent laws, to put some pressure on a suspect, such as a threat

of administrative penalty, but not too much pressure. Id.

Finally, the Supreme Court considered whether law enforcement

could obtain a warrantless blood draw from an unconscious driver

suspected of driving while intoxicated in Mitchell, 588 U.S. ___, 139 S. Ct.

2525. Like this case, the state in Mitchell relied exclusively on the theory

that warrantless blood draws may be supported by implied-consent laws.

Id. at ___, 139 S. Ct. at 2532. The lower court accepted the state’s theory

as did the Supreme Court of Wisconsin. Id. A plurality of the United

States Supreme Court, however, had different ideas. The plurality elected

to decide the case based upon the exigent-circumstances exception to the

warrant requirement. Id. at ___, 139 S. Ct. at 2534–37.

Justice Alito wrote for a four-person plurality. In canvassing the

implied-consent precedents, the plurality noted that “our decisions have

not rested on the idea that these laws do what their popular name might

seem to suggest—that is, create actual consent to all the searches they

authorize.” Id. at ___, 139 S. Ct. at 2533. Instead, the Alito plurality

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emphasized that the cases have dealt with “the specific constitutional

claims in each case.” Id. at ___, 139 S. Ct. at 2533.

The Alito plurality next considered the public policy grounds for

obtaining blood draws. Id. at ___, 139 S. Ct. at 2535–37. The Alito

plurality noted that “highway safety is a vital public interest,” that federal

and state laws have long maintained that tests measuring blood alcohol

content aid the public safety interest, and that enforcing blood alcohol

content laws “requires a test . . . accurate enough to stand up in court.”

Id. at ___, 139 S. Ct. at 2535–37.

The Alito plurality reviewed Schmerber, giving it a very narrow gloss.

Id. at ___, 139 S. Ct. at 2537–38. The Alito plurality concluded that in the

drunk-driving context, police are often “engag[ing] in a form of triage” in

allocating resources and that law enforcement faces the choice of getting

a warrant “to the detriment of critical health and safety needs.” Id. at ___,

139 S. Ct. at 2538.

The Alito plurality then announced its conclusion. According to the

Alito plurality, police would “almost always” be entitled to conduct a

warrantless blood draw to measure a driver’s blood alcohol content where

the unconsciousness of the driver requires that the driver be taken to a

hospital or similar facility. Id. at ___, 139 S. Ct. at 2539. But the Alito

plurality did not rule out the possibility that a driver could show that police

would not have taken a blood draw or that “police could not have

reasonably judged that a warrant application would interfere with other

pressing needs or duties.” Id. at ___, 139 S. Ct. at 2539.

There was one other important limitation in Mitchell. Justice Alito

emphasized that the legal conclusions in the opinion rested upon the fact

that “a breath test is impossible.” Id. at ___, 139 S. Ct. at 2531. This

important limitation appears in various forms throughout the plurality

59

opinion. See, e.g., id. at ___, 139 S. Ct. at 2531 (“[T]he driver is

unconscious and therefore cannot be given a breath test.”); id. at ___, 139

S. Ct. at 2534 (“[The police had] no reasonable opportunity to give Mitchell

a breath test . . . .”); id. at ___, 139 S. Ct. at 2537 (“Thus, in the case of

unconscious drivers, who cannot blow into a breathalyzer, blood tests are

essential for achieving the compelling interests described above.”). In

other words, the sweeping, nearly per se rule in Mitchell is limited to

situations involving an unconscious defendant.

Justice Thomas provided the fifth vote by concurring in the result of

the case. Id. at ___, 139 S. Ct. at 2539–41 (Thomas, J., concurring in

judgment). Justice Thomas, however, would hold that there is a per se or

categorical exception to the warrant requirement where the “failure to act

would result in ‘the imminent destruction of evidence.’ ” Id. at 2540

(quoting King, 563 U.S. at 460, 131 S. Ct. at 1856). Justice Sotomayor,

joined by Justice Ginsburg and Justice Kagan, dissented. Id. at ___, 139

S. Ct. at 2541–51 (Sotomayor, J., dissenting). She wrote that the plurality

rested on the false premise that the states must choose between attending

to emergency situations and obtaining a warrant. Id. at ___, 139 S. Ct. at

2541. She wrote that the answer under the Fourth Amendment was clear:

“If there is time, get a warrant.” Id. at ___, 139 S. Ct. at 2541.

Justice Sotomayor emphasized that there were “carefully

circumscribed exceptions to the warrant requirement,” including exigent

circumstances. Id. at ___, 139 S. Ct. at 2543. She had a different view of

Schmerber than the plurality, noting that “special facts” in that case “left

the police with ‘no time to seek out a magistrate and secure a warrant.’ ”

Id. at ___, 139 S. Ct. at 2544 (quoting Schmerber, 348 U.S. at 770–71, 86

S. Ct. at 1836). She noted that attempts to categorically exclude blood

draws from the warrant requirement were rejected in McNeely and

60

Birchfield. Id. at ___, 139 S. Ct. at 2544. According to Justice Sotomayor,

the plurality engaged in a “considerable overgeneralization,” which had

been rejected in McNeely. Id. at ___, 139 S. Ct. at 2550 (quoting McNeely,

569 U.S. at 153, 133 S. Ct. at 1561). Justice Sotomayor wrote that “no

one suggests that the warrant process should interfere with medical care”

but in many cases, “the police will have enough time to address medical

needs and still get a warrant before the putative evidence . . . dissipates.”

Id. at ___, 139 S. Ct. at 2550.

Justice Sotomayor acknowledge that drunk drivers are a cause for

great concern on the road, but argued that it is “ ‘[p]recisely because the

need for action . . . is manifest’ in such cases that ‘the need for vigilance

against unconstitutional excess is great.’ ” Id. at ___, 139 S. Ct. at 2551

(alteration and omission in original) (quoting Skinner, 489 U.S. at 635, 109

S. Ct. at 1423 (Marshall, J., dissenting)). Justice Sotomayor observed that

“a small delay to obtain a warrant is hardly a recipe for lawless roadways.”

Id. at ___, 139 S. Ct. at 2548.

Justice Sotomayor also addressed the question of whether the

Supreme Court should even consider the exigent-circumstances exception

given the state of the record. Id. at ___, 139 S. Ct. at 2545–47. Justice

Sotomayor noted that the State of Wisconsin had never argued for

application of the exigent-circumstances exception in the litigation. Id. at

___, 139 S. Ct. at 2545–47. Further, she observed that the Court granted

certiorari to answer “[w]hether a statute authorizing a blood draw from an

unconscious motorist provides an exception to the Fourth Amendment

warrant requirement.” Id. at ___ n.5, 139 S. Ct. at 2546 n.5 (alteration in

original). Sotomayor accused the plurality of taking on an issue that

Wisconsin had “knowingly and intentionally abandoned.” Id. at ___, 139

S. Ct. at 2545–46. The plurality thus operated without a developed factual

61

record or the usual give and take of the adversary process on legal

questions. Id. at ___, 139 S. Ct. at 2546.

Justice Sotomayor concluded by accusing the plurality of “act[ing]

recklessly” in deciding a significant constitutional issue without a factual

record and fully developed adversary proceeding. Id. at ___, 139 S. Ct. at

2546. According to Justice Sotomayor,

The plurality today carries that burden [demonstrating

the availability of exigent circumstances exception] for a State

that never asked it to do so, not only here but also in a

scattershot mass of future cases. Acting entirely on its own

freewheeling instincts—with no briefing or decision below on

the question—the plurality permits officers to order a blood

draw of an unconscious person in all but the rarest cases,

even when there is ample time to obtain a warrant. The

plurality may believe it is helping to ameliorate the scourge of

drunk driving, but what it really does is to strike another

needless blow at the protections guaranteed by the Fourth

Amendment.

Id. at ___, 139 S. Ct. at 2551.

Justice Gorsuch in a brief dissenting opinion noted certiorari was

granted to consider whether Wisconsin drivers impliedly consent to blood

draws “thanks to a state statute.” Id. at ___, 139 S. Ct. at 2551 (Gorsuch,

J., dissenting). The Court, Justice Gorsuch observed, chose to decide the

case “on an entirely different ground.” Id. at ___, 139 S. Ct. at 2551.

Justice Gorsuch wrote that “the application of the exigent circumstances

doctrine in this area poses complex and difficult questions that neither the

parties nor the courts below discussed.” Id. at ___, 139 S. Ct. at 2551. As

a result, Justice Gorsuch “would have dismissed [the petition] as

improvidently granted.” Id. at ___, 139 S. Ct. at 2551.

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C. State Court Precedents Involving Warrantless and

Unconsented Invasions of Bodily Integrity by the State.

1. Implied consent. I now turn to an examination of state court

precedents regarding the constitutionality of invasions of bodily integrity

by the state based on “implied consent” laws where the suspect has not

given actual consent. As will be apparent, there are many jurisdictions

that have come to the conclusion that implied-consent laws are not a

stand-alone exception to the warrant requirement under both the Fourth

Amendment and the search and seizure provisions of their state

constitutions. What follows below is a summary of the important reasons

supporting these state court decisions.

Many of the state court cases rely upon Supreme Court cases in

their discussion of the validity of warrantless searches of unconscious

persons based upon implied-consent statutes. Many cases also cite to

parallel search and seizure provisions under the applicable state

constitutions. The state cases, however, do not generally provide a

separate analysis of state constitutional provisions.

Many state court cases involving unwarranted bodily invasions of

unconscious people by the state focus on the notion that in order to have

“consent” sufficient to avoid the warrant requirement, the consent must

be the product of a conscious mind in order to be “voluntary.” The notion

of consent as a voluntary act has existed in Anglo-American jurisprudence

for time out of mind. A corollary to the requirement of a conscious mind

is the necessity of the power to limit or revoke consent. Because the

features of a conscious mind are not present when blood draws are taken

from an unconscious person and an unconscious person is not capable of

limiting or revoking consent, state courts have repeatedly pounded that

the voluntariness required for a person to waive the warrant requirement

63

is not present. See, e.g., State v. Havatone, 389 P.3d 1251, 1255 (Ariz.

2017) (“We conclude that the unconscious clause can be constitutionally

applied only when case-specific exigent circumstances prevent law

enforcement officers from obtaining a warrant.”); People v. Arredondo, 199

Cal. Rptr. 3d 563, 573 (Ct. App. 2016) (“[C]onsent of this kind cannot be

characterized as ‘free[].’ ” (alteration in original) (quoting People v. Michael,

290 P.2d 852, 853 (Cal. 1955) (en banc))); People v. Ling, 222 Cal. Rptr. 3d

463, 469 (App. Dep’t Super. Ct. 2017) (“[I]t needs no citation of authorities

to state that an unconscious man is incapable of giving consent.” (quoting

Carrington v. Superior Ct., 107 Cal. Rptr. 546, 549 (Ct. App. 1973))); State

v. Wulff, 337 P.3d 575, 581 (Idaho 2014) (“[I]rrevocable implied consent

operates as a per se rule that cannot fit under the consent exception

because it does not always analyze the voluntariness of that consent.”);

Byars v. State, 336 P.3d 939, 946 (Nev. 2014) (en banc) (“[T]he statute does

not allow a driver to withdraw consent, thus a driver’s so-called consent

cannot be considered voluntary.”); State v. Romano, 800 S.E.2d 644, 653

(N.C. 2017) (“The State did not present any other evidence [other than the

implied-consent statute] of consent or argue that under the totality of the

circumstances [that the] defendant consented to a blood draw.”);

Commonwealth v. Myers, 164 A.3d 1162, 1173 (Pa. 2017) (“[C]onsent

always must be revocable.”); State v. Fierro, 853 N.W.2d 235, 241–42 (S.D.

2014) (holding that when the trial court found no consent, the state did

not meet the burden of showing an exception to warrant requirement);

State v. Villarreal, 475 S.W.3d 784, 799 (Tex. Crim. App. 2014) (“[A] . . .

necessary element of valid consent is the ability to limit or revoke it.”).

The state court cases involving bodily invasions of unconscious

people without a warrant by the state further emphasize that whether

consent for purposes of search and seizure law has been provided by an

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individual raises a question of fact and not law. Thus, the notion of

“implied consent” pursuant to a statute is said to be an inaccurate

description. As noted by a California appellate court in People v.

Arredondo,

“[I]mplied consent” is a misleading, if not inaccurate, label in

this context. Certainly consent sufficient to sustain a search

may be “implied” as well as explicit, but it is nonetheless

actual consent, “implied” only in the sense that it is

manifested by conduct rather than words.

199 Cal. Rptr. 3d at 571. In other words, “ ‘implied consent’ in the statute

does not mean that police may require drivers to consent to [testing] simply

because they drove.” State v. Baird, 386 P.3d 239, 247 (Wash. 2017)

(en banc). Instead, it means that “in situations that the legislature has

specified, if a driver chooses not to consent, the driver agrees that he or

she will incur the consequences of that decision.” Id. (footnote omitted);

see also State v. Padley, 849 N.W.2d 867, 876 (Wis. Ct. App. 2014)

(“ ‘Implied consent’ is not an intuitive or plainly descriptive term with

respect to how the implied consent law works. We suspect that it is a

source of confusion.”). The Arredondo court further noted that under the

law of contracts, consent may be implied but it is consent “in fact,” inferred

from conduct that constitutes an actual manifestation of consent. 199

Cal. Rptr. 3d at 571; see also Villareal, 475 S.W.3d at 799 (stating that the

question of the voluntariness of consent is a fact question).

The state court cases involving unwarranted bodily invasions of

unconscious people by the state also express concern regarding the power

of the state legislature to override constitutional commands in implied-

consent statutes. The Arredondo court discussed this concern at length,

noting that “[a] state legislature does not have the power to ‘deem’ into

existence ‘facts’ operating to negate individual rights.” 199 Cal. Rptr. 3d

65

at 574. But further, the Arredondo court worried about the implications

of legislatively-imposed consent:

It is far from implausible, for example, that a legislative body—

state or federal—might decree, in the name of public safety or

national security, that the use of the mails, or the phone lines,

or the Internet—all of which rely to a greater or lesser extent

on publicly owned property or facilities or publicly provided

services—constitutes consent to search the contents of all

communications thus conducted. Consent to search homes

might be “deemed” to be given by anyone taking advantage of

various publicly provided or subsidized privileges—like use of

public utilities, libraries, or schools. Consent to search the

person might be “deemed” to be given by use of a public

sidewalk or occupancy of a public place.

Id. at 577–78; see also Hannoy v. State, 789 N.E.2d 977, 987 (Ind. Ct. App.

2003) (“To hold that the legislature could nonetheless pass laws stating

that a person ‘impliedly’ consents to searches under certain circumstances

where a search would otherwise be unlawful would be to condone an

unconstitutional bypassing of the Fourth Amendment.”); Meyers, 164 A.3d

at 1174 (“[L]egislative proclamation that motorists are deemed to have

consented to chemical tests is insufficient to establish the voluntariness

of consent that is necessary to serve as an exception to the warrant

requirement.”).

Some of the cases focus on the fact that where officers can

practically obtain a warrant without significantly undermining the

efficiency of such search, the officers are required to obtain the warrant.

Bailey v. State, 790 S.E.2d 98, 103 (Ga. Ct. App. 2017).

2. Exigent circumstances. I now turn to state court cases

considering whether the exigent-circumstances exception applies in the

context of obtaining blood draws from unconscious drivers suspected of

driving while intoxicated. Using Schmerber as a springboard, the states

are decidedly split. Some courts are relatively demanding in requiring the

66

state to make a strong showing of exigent circumstances, while other

courts seem more receptive to warrantless searches of unconscious drivers

under the exception.

For example, in State v. Bohling, the Supreme Court of Wisconsin

held, over a dissent, that Schmerber created a per se exigent exception to

the warrant requirement. 494 N.W.2d 399, 401–02, 406 (Wis. 1993). The

Bohling majority relied upon: (1) the language in Schmerber; (2) the

language in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. at 624–

25, 109 S. Ct. at 1416–17, where the court minimized the intrusive nature

of blood draws; (3) interpretations of Schmerber by other courts; and (4) an

examination of the state’s interest in drunk-driving laws. Bohling, 494

N.W.2d at 402.

But, in contrast, the Supreme Court of Utah came to the opposite

conclusion in State v. Rodriguez. 156 P.3d 771, 774–80 (Utah 2007). The

Utah court relied upon Justice Brennan’s later explanation of Schmerber,

that “[t]he intrusion perhaps implicated Schmerber’s most personal and

deep-rooted expectations of privacy, and the Court recognized that Fourth

Amendment analysis thus required a discerning inquiry into the facts and

circumstances to determine whether the intrusion was justifiable.” Id. at

775 (alteration in original) (quoting Winston v. Lee, 470 U.S. at 760, 105

S. Ct. at 1616).

There are at least three state court cases dealing with the application

of the exigent-circumstances exception to the warrant requirement in the

context of dissipation of marijuana metabolites. In Byars v. State, the

Supreme Court of Nevada noted that “[t]here [was] no indication in the

record that Trooper Murwin was prevented from seeking a warrant

telephonically.” 336 P.3d at 944. On the record of the case, the court held

67

that the state failed to establish exigent circumstances to justify the

warrantless search. Id. at 944–45.

A similar result occurred in City of Seattle v. Pearson, 369 P.3d 194

(Wash. Ct. App. 2016). In that case, a Washington appellate court

observed,

Absent other extenuating circumstances, the natural

dissipation of THC in a suspect’s bloodstream will constitute

an exigency sufficient to forgo the warrant requirement only if

the party seeking to introduce evidence of a warrantless blood

test can show that waiting to obtain a warrant would result in

losing evidence of the defendant’s intoxication.

Id. at 200. Further, the Washington court went on to state,

[W]e hold that the natural dissipation of THC from the

bloodstream is a relevant consideration in an exigent

circumstances analysis but is not a per se exigent

circumstance that justifies an exception to the warrant

requirement for nonconsensual blood draws in DUI cases.

Id. at 201. Based on the record, the court concluded that the warrantless

blood draw was not justified in that case. Id.

In State v. Anderson, however, a Washington appellate court

concluded, based on the record, that the state had made an adequate

showing of exigent circumstances in an alcohol and THC case based on

the facts and circumstances presented. 447 P.3d 176, 182 (Wash. Ct. App.

2019).

D. Iowa Cases Involving Warrantless Blood Draws.

1. Implied consent. Although they do not deal specifically with

implied consent, we have considered a number of search and seizure cases

that generally applied the notion of consent found in Schneckloth under

both the Fourth Amendment to the United States Constitution and article

I, section 8 of the Iowa Constitution. In these cases, we applied the familiar

fact-based, totality-of-the-circumstances test. In some cases, we found

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that the state failed to show valid consent. See, e.g., Reinier, 628 N.W.2d

at 467–69; State v. Horton, 625 N.W.2d 363, 364 (Iowa 2001) (en banc). In

other cases, we held that the state successfully demonstrated consent.

State v. Reinders, 690 N.W.2d 78, 84 (Iowa 2004). These cases show

consistent application of a nuanced, case-specific approach to consent.

We considered a question of a categorical, nonfact-based approach

in State v. Ochoa. 792 N.W.2d at 287–91. In Ochoa, the state asserted

that its executive action in imposing “search conditions” in parole

agreements authorized law enforcement officials to search the residence of

a parolee at any time and for any reason. Id. at 262. We noted that the

scope of the state’s asserted power was “stunningly broad.” Id. at 287–88.

We expressed concern about the “categorical nature” of the treatment of

the issue by the United States Supreme Court. Id. at 289. We rejected

the artificial “act of grace,” “waiver,” or “constructive custody” theories. Id.

at 290–91. We noted that the asserted power of the state too closely

resembled a general warrant, where a search could be conducted without

any meaningful mechanism of control. Id. at 291. Although the case did

not expressly involve consent, we showed in Ochoa firm resistance to

broad, generalized policies imposed by the executive branch designed to

defeat individualized claims of search and seizure protection under the

Iowa Constitution. See id.

We considered the issue of consent in the context of a traffic stop in

Pals. 805 N.W.2d at 770–71. In Pals, we concluded, based again on the

totality of circumstances, that Pals’s consent could not be considered

voluntary under article I, section 8 of the Iowa Constitution. Id. at 782–

84. Among other factual factors, we considered the fact that Pals was

subject to a pat-down search, that he was detained in a police vehicle, that

he was not told that he was free to leave, and that the officer had not told

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Pals that the business related to the stop was concluded. Id. Our review

of the consent issue was clearly fact-intensive.

We considered an important consent issue in State v. Baldon. 829

N.W.2d at 789–91. In Baldon, the question was whether a signature by a

parolee convicted of drug offenses on a parole agreement that consented

to future warrantless searches of his home, vehicle, and belongings was a

valid consent under article I, section 8 of the Iowa Constitution. Id. at

787–91. The courts across the country were split on the issue. Id. at 792–

95. After review of the cases, we sided with the jurisdictions that held that

the execution of a parole agreement did not categorically establish consent.

Id. at 800–03. A prospective consent-to-search provision in a parole

agreement did not solely give rise to a valid consent. Id. at 800. We noted

that there was no additional evidence in the record to reveal Baldon

voluntarily consented to a search. Id. at 802. But the state relied solely

on the parole agreement, which we found was insufficient. Id. We stated

that “more is needed.” Id. at 803.

The above principles have generally been applied by this court in the

context of claims of consent via implied-consent statutes. In State v.

Garcia, we considered whether an individual voluntarily submitted to a

blood test when an officer invoked implied-consent procedures. 756

N.W.2d 216, 220 (Iowa 2008). We emphasized that in order to be

voluntary, the consent must be “freely made, uncoerced, reasoned, and

informed.” Id. The issue of consent was not “deemed” to be satisfied

merely by the statute, but needed to be proved, as a matter of fact, by the

state. Id. at 220–21, 223.

A second implied-consent case is State v. Overbay, 810 N.W.2d 871

(Iowa 2012). In that case, we determined that consent could be voluntary

under an implied-consent regime provided that the decision to submit to

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the test was “a reasoned and informed decision.” Id. at 876 (quoting State

v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003)). Again, the statute itself

was insufficient for consent to be “deemed” to have been satisfied. Id.

Instead, the state was required to prove that the consent, pursuant to the

statute, satisfied the voluntariness requirement. Id. at 879–80.

Finally, we considered the issue of implied consent in Pettijohn. 899

N.W.2d at 25–29. In that case, we considered the constitutionality of a

warrantless breath test obtained from a boater suspected of drunk

boating. Id. at 25–26. We canvassed jurisdictions, noting that consent

must be voluntary and must be subject to limitation or withdrawal. Id. at

28. Consistent with Garcia and Overbay, we rejected the state’s claim that

the implied-consent statute dealing with drunken boaters provided per se

consent sufficient to justify the warrantless breath test in the case. Id. at

29. We therefore held that the consent implied by the statute did not

automatically permit a warrantless search consistent with article I, section

8 of the Iowa Constitution. Id.

We then turned to the question of whether consent was given by

Pettijohn under the totality of circumstances to be sufficiently voluntary

to pass constitutional muster under article I, section 8. Id. at 29–38. We

canvassed the facts, including the intoxication of the boater, the detention

of the boater at the police station, the inaccuracy of the implied-consent

agreement read to him by the officers, and the imposition of a penalty of

at least $500 for failing to provide consent. Id. at 32–38. We concluded

that in light of all the facts and circumstances, consent was not voluntary

in the case. Id. at 37–38.

The majority opinion was qualified in one important respect.

According to the majority, the evaluation of the totality-of-the-

circumstances test could lead to different outcomes in a different case. Id.

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at 38. The majority stated “[a]ny decision relating to operating a motor

vehicle while under the influence will have to wait for another case raising

its constitutionality.” Id.

2. Exigent circumstances. In State v. Findlay, we considered

whether a search of the body of an unconscious person not under arrest

amounted to an unreasonable invasion of privacy. 259 Iowa 733, 735, 145

N.W.2d 650, 651–52 (1966). The Findlay court recognized that a warrant

was generally required and that the administrative “inconvenience to the

officers” and the “delay necessary to prepare the papers and present the

evidence to the magistrate” is not an “exceptional circumstance” sufficient

to avoid the warrant requirement. Id. at 739, 145 N.W.2d at 654. But the

Findlay court emphasized that “the situation [was] different where the

delay will cause the destruction of the evidence, and where . . . there is a

showing the officer believes delay will result in a loss of the vital evidence.”

Id. at 740, 145 N.W.2d at 654.

Although the opinion is cryptic, it is an early version of the exigent-

circumstances exception to the warrant requirement in the context of an

unconscious driver suspected of driving while intoxicated. On the one

hand, it is clear that expressions of administrative convenience clearly are

insufficient to avoid the warrant requirement. On the other hand, when

law enforcement produces expert testimony stating that, under the facts

and circumstances, the state faced imminent destruction of evidence, the

state might not be required to seek a warrant. Findlay is a something for

everyone case.

There are two more recent Iowa exigent-circumstances cases that

provide additional guidance. The first case is State v. Johnson, 744 N.W.2d

340 (Iowa 2008). The case concerned a driver involved in an accident and

suspected of drunk driving and was arrested and taken to the Des Moines

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police station. Id. at 341. After the suspect refused a breath test, he was

taken to the hospital and a blood sample was taken without his consent.

Id.

In Johnson, we directly confronted the two strands of authority

emanating from Schmerber. Id. at 343–45. We rejected the per se

approach to exigency adopted by the Supreme Court of Wisconsin in

Bohling, 494 N.W.2d at 402, in favor of the more fact-based approach

adopted by the Supreme Court of Utah in Rodriguez, 156 P.3d at 776.

Johnson, 744 N.W.2d at 344.

The second case is State v. Harris, 763 N.W.2d 269 (Iowa 2009) (per

curiam). In Harris, we considered a warrantless blood draw where the

driver in a single vehicle accident had killed a pedestrian. Id. at 270.

Under the applicable statute, a warrantless blood draw was permitted if

“[t]he peace officer reasonably believes the officer is confronted with an

emergency situation in which the delay necessary to obtain a warrant . . .

threatens the destruction of the evidence.” Id. at 271–72 (quoting Iowa

Code § 321J.10A(1)(c) (2006)).

In Harris, we again considered the question of the scope of

Schmerber. Id. at 272–73. We again noted that Schmerber required more

than the mere dissipation of alcohol to justify a warrantless search. Id. at

272. We also stressed the Schmerber language that for the warrantless

blood draw in that case, there was not time to obtain a warrant and that

“given these special facts,” a warrantless search was permitted. Id.

(emphasis omitted) (quoting Schmerber, 384 U.S. at 770–71, 86 S. Ct. at

1835–36). In short, we clearly aligned with the line of cases that

interpreted Schmerber to be a case about “special facts” and not a case

about the categorical endorsement of warrantless searches for blood

draws. See id.

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We then turned to analysis of the facts in Harris. The record showed

that the officer was acting at the direction of the county attorney with

respect to the warrant application. Id. at 273–75. The officer’s testimony

included the following:

Q: . . . [C]ould you tell the Court what the emergency

situation was in this case that caused you to draw blood . . .

without a warrant . . . . A: Well, I was following the guidelines

from [the county attorney]. . . .

....

Q: Was the emergency situation that [the county

attorney] says take the blood? A: This is what the county

attorney—we had all what we thought we may have, what we

might have, and this was the decision of the county attorney.

Q: And you followed his instructions? A: And I

followed his instructions.

Id. at 274 n.2 (first alteration and first, second, third, and fifth omissions

in original).

As a result, the suppression was affirmed. Id. at 275. Harris plainly

stands for the proposition that the reasonability component of the exigent-

circumstance exception, at least in Iowa, has an objective and subjective

component.

IV. Discussion of the Merits.

A. Implied Consent. In my view, the precise issue presented and

decided by the district court, and raised on appeal, is whether an

unconscious driver may be “deemed” to have consented to a blood draw

under Iowa’s implied-consent statute consistent with the Fourth

Amendment and article I, section 8, has a clear answer: No.

At the outset, as noted by the authorities in more than a dozen

states, the narrow and jealously guarded theory of consent to avoid the

warrant requirement in search and seizure cases is fact-based. Whether

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one operates under the consent approach of Schneckloth or the more

demanding waiver theory of Zerbst, the notion of the surrender of

constitutional rights by the individual requires a deliberate and voluntary

act. The basic premise of consent is that it is an act of free will, given

voluntarily. And, it has been repeatedly said, in order for consent to be

voluntary, it must be subject to limitation and, ultimately to revocation.

See, e.g., Jimeno, 500 U.S. at 252, 111 S. Ct. at 1804. But see Iowa Code

§ 321J.7 (prohibiting revocation of “implied consent”). The notion of

voluntary consent is a question of fact and is a constant across different

fields of law. See, e.g., Johnson v. Associated Milk Processors, 886 N.W.2d

384, 390 (Iowa 2016) (holding in contract law consent may be express or

implied “from acts and conduct” (quoting Davenport Osteopathic Hosp.

Ass’n of Davenport, Iowa v. Hosp. Serv., Inc., 261 Iowa 247, 253, 154

N.W.2d 153, 157 (1967))); State v. Plaster, 424 N.W.2d 226, 229 (Iowa

1988) (en banc) (holding that determining consent to intercourse is “the

consequential fact” in a sexual abuse case); Jarvis v. Stone, 216 Iowa 27,

35, 247 N.W. 393, 397 (1933) (determining that whether an automobile is

driven without the owner’s consent is a question of fact).

None of these features are present when consent is “deemed” to have

occurred solely based on the legislature’s declaration in Iowa’s implied-

consent statute. See Iowa Code § 321J.6. Consistent with the vast

majority of state court cases, our caselaw under article I, section 8 has

consistently rejected artificial, categorical approaches to consent, and

instead requires the state to show that consent was truly voluntary based

on an individualized, fact-based inquiry. See, e.g., Pettijohn, 899 N.W.2d

at 29–38; Baldon, 829 N.W.2d at 800–03; Overbay, 810 N.W.2d at 879–

80; Ochoa, 792 N.W.2d at 287–91; Garcia, 756 N.W.2d at 220–23.

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Further, the notion that a driver is “deemed” to have consented to a

blood draw solely based upon driving on the highways imposes an

unconstitutional condition on a government benefit. This issue was

explored in one of the amicus briefs filed in Mitchell. See Brief of Amicus

Curiae California DUI Lawyers Ass’n in Support of Petitioner at 4–10,

Mitchell, 588 U.S. ___, 139 S. Ct. 2525 (2019) (No. 18–6210), 2019 WL

1092735, at *4–10 [hereinafter Mitchell Amicus Brief]. The brief noted that

in Frost v. Railroad Commission, 271 U.S. 583, 46 S. Ct. 605 (1926), the

Supreme Court struck down a state law that, as a condition of operating

on its highways, required private carriers to become public carriers.

Mitchell Amicus Brief, at 4–5, 2019 WL 1092735, at *4–5. The Supreme

Court declared:

If the state may compel the surrender of one constitutional

right as a condition of its favor, it may, in like manner, compel

a surrender of all. It is inconceivable that guaranties

embedded in the Constitution of the United States may thus

be manipulated out of existence.

Frost, 271 U.S. at 594, 46 S. Ct. at 607; see also; Koontz v. St. John’s River

Water Mgmt. Dist., 570 U.S. 595, 606, 133 S. Ct. 2586, 2595 (2013) (“[T]he

unconstitutional conditions doctrine forbids burdening the Constitution’s

enumerated rights by coercively withholding benefits from those who

exercise them.”); Arredondo, 198 Cal. Rptr. 3d at 570–71, 577–78 (listing

possible extension of unconstitutional conditions). Similarly, the amici

argued, implied-consent laws contain the implied condition of forfeiting

one’s search and seizure rights against a warrantless search in order to

drive. Mitchell Amicus Brief, at 7, 2019 WL 1092735, at *7.

If the door is open to unconstitutional conditions, the amici

suggested, the end result could severely undermine our panoply of

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constitutional rights. Id. at 9–10, 2019 WL 1092735, at *9–10. The amici

cited United States v. Scott, where the Ninth Circuit noted:

Government is a monopoly provider of countless services,

notably law enforcement, and we live in an age when

government influence and control are pervasive in many

aspects of our daily lives. Giving the government free rein to

grant conditional benefits creates the risk that the

government will abuse its power by attaching strings

strategically, striking lopsided deals and gradually eroding

constitutional protections.

450 F.3d 863, 866–67 (9th Cir. 2006); see also Kathleen M. Sullivan,

Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1492 (1989).

If implied-consent statutes can, as a matter of law, require all drivers

to waive search and seizure protections with respect to warrantless blood

draws, may the state, then, pass a statute declaring that all drivers must

waive search and seizure protections for their cell phones, their car

interiors, their glove compartments, or the persons in their car? And the

reach of statutorily created consent could extend well beyond the highway.

May the government condition the granting of a building permit on implied

consent to search the premises without a warrant? See Elkins v. District

of Columbia, 710 F. Supp. 2d 53, 56–61, 65 (D.D.C. 2010), vacated on

other grounds, 690 F.3d 554 (D.C. Cir. 2012). In short, the replacement

of the established, fact-based, constitutionally required voluntary consent

with a statutory system of trumps would have the potential to eliminate

the effectiveness of our State and Federal Bill of Rights. That sharp sound

one hears in the background is George Ells and his compatriots screaming,

“NO, NO, NO!” to the State’s claim of legislative supremacy to override the

precious terms of article I of the Iowa Constitution.

And, the notion that the legislature can as a matter of law “deem” a

driver to have consented to a search by simply using the roads amounts

to a general warrant or writ of assistance—the very reasons for the

77

development of American search and seizure law. See Ochoa, 792 N.W.2d

at 263–74; see also Riley, 573 U.S. at 403, 134 S. Ct. at 2494. If all of the

tens of thousands of persons driving on the Iowa roads each day “consent”

by force of law to “waive” the constitutional protections of the Fourth

Amendment and article I, section 8, is that not a legislative enactment of

a general warrant? In Maryland v. King, Justice Scalia described the hated

general warrants as “warrants not grounded upon a sworn oath of a

specific infraction by a particular individual, and thus not limited in scope

and application.” 569 U.S. 435, 466, 133 S. Ct, 1958, 1980 (2013) (Scalia,

J., dissenting). Isn’t that exactly what Iowa Code sections 321J.6 and

321J.7 do? Doesn’t the implied-consent statute mean that blood draws

for everyone on the open road are now permitted without an oath, without

particularity, and unlimited in scope? Preventing the state from having

the power to generally search large groups of people without a warrant was

precisely the abuse that search and seizure law was designed to prevent.

For all of the above reasons, even the United States Supreme Court

is, currently at least, unwilling to justify warrantless searches of an

unconscious person based on implied-consent statutes. From a process

point of view, Mitchell is surely a procedural pretzel, with the Supreme

Court taking a case to resolve the question of whether implied consent

permitted the warrantless search of an unconscious driver, and then

twisting the case to decide the unraised question of exigent circumstances

that was not briefed by the parties and, indeed, was conceded by the state

below. This extraordinary maneuver suggests the Supreme Court did not

want to touch the hot stove issue of warrantless searches based on the

legal concept of implied consent.

In any event, I would reject the notion that a statute can “deem” the

fact of consent under the Iowa Constitution in light of the free will nature

78

of consent embraced in the caselaw, rejection of unconstitutional

conditions, the similarity of implied consent to a general warrant or writ of

assistance, and our consistent recent caselaw. See Pettijohn, 899 N.W.2d

at 28–29 (rejecting mere existence of statutory implied consent to permit

administration of a warrantless test and stating “we must determine,

under the totality of the circumstances, whether Pettijohn effectively

consented to submit to the breath test”); Baldon, 829 N.W.2d at 802

(“Considering our obligation to ensure that consent remains a doctrine of

voluntariness that functions with integrity, we conclude a parole

agreement containing a prospective search provision is insufficient

evidence to establish consent.”); Ochoa, 792 N.W.2d at 291 (“[A] parolee

may not be subjected to broad, warrantless searches by a general law

enforcement officer without any particularized suspicion or limitations to

the scope of the search.”).

The only rationale for avoiding a warrant presented by the State at

the district court was that consent was “deemed” under Iowa’s implied-

consent statute. The State made no effort to show exigent circumstances

to avoid the warrant requirement. As a result, McGee’s motion to suppress

should have been granted. I would thus vacate McGee’s conviction and

remand the matter to the district court.

B. Exigent Circumstances.

1. Preservation of error. There is an initial issue of preservation of

error. As is apparent from an examination of the transcript of the legal

argument at the hearing, the State made no claim at all of exigent

circumstances below. Further, the district court made no factual or legal

findings on the issue. This is thus not a case where a change of law

occurred while a claim of exigency was pending before the court. The State

simply did not claim exigency, period.

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A decision not to pursue exigent circumstances would not have been

careless as, under our caselaw, there was little chance that the State could

prevail on the issue. The facts reveal that the case has a striking parallel

to Harris, where we held that if the only reason advanced for not getting a

warrant was the directives of the prosecutor, exigent circumstances have

not been established. 763 N.W.2d at 270, 275. A decision not to proceed

would be consistent with a strategic decision not to present a meritless

claim.

We have previously considered a case where the state did not make

a claim in the district court during a suppression hearing and then

attempted to resurrect it for the first time on appeal. See Baldon, 829

N.W.2d at 789. In State v. Baldon, the state, before the district court,

asserted that Baldon had consented to a search through a parole

agreement, but did not raise any generalized argument under a “balancing

test” or “special needs” theory. Id. (quoting New Jersey v. T.L.O., 469 U.S.

325, 351, 105 S. Ct. 733, 748 (1985) (Blackmun, J., concurring in

judgment)). We stated:

The State did not introduce evidence of any particular need

for the parole officer to search Baldon, either predicated on

individual suspicion, background information particular to

Baldon that would have been known to the parole officer, or

the general mission of parole. Thus, the only issue we address

on appeal is whether a parole agreement containing a

consent-to-search clause renders suspicionless and

warrantless searches of parolees reasonable under the search

and seizure clause of the Iowa Constitution.

Id. at 789–90. A dissent argued that we should have considered the issues

not presented because of caselaw developments that occurred after the

district court proceedings. Id. at 847 (Mansfield, J., dissenting). The

question of issue preservation in this case presents nearly identical

80

circumstances as the issue preservation question presented and decided

in Baldon.

We have stated that “[i]t is a fundamental doctrine of appellate

review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.” Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). Here, there is no question that the

State did not raise exigent circumstances before the district court. Thus,

if the preservation ruling in Meier v. Senecaut, as applied in Baldon, is to

be followed, we would not address the exigent-circumstances issue raised

by the State for the first time on appeal. I would follow our precedent and

decline to consider the exigent-circumstance question which the State did

not raise in the trial court below.

The problem here is especially acute when we are asked to depart

from past precedent and adopt the newly developed approach in Mitchell

to a blood draw designed to obtain evidence of marijuana use. No record

has been developed to guide us in the potential fashioning or refurbishing

of our traditional approach to exigent circumstances. We should not

engage in significant constitutional innovations without a thorough record

below.

2. Discussion. If I were to address the question posed on appeal as

a first responder, without a record or decision of the district court on the

issue, I would find the constitutional innovations to the Fourth

Amendment law introduced by the Supreme Court in Mitchell problematic

and inapplicable to our consideration of the question under article I,

section 8 of the Iowa Constitution. To the extent I would look to federal

caselaw for guidance, I find the opinions of Justice Sotomayor in McNeely

and Mitchell far more persuasive than the Mitchell plurality opinion.

Further, I would rely on the better reaso

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