State of Iowa v. Nicholas Dean Wright

IN THE SUPREME COURT OF IOWA

No. 19–0180

Submitted September 17, 2020—Filed June 18, 2021

Amended August 31, 2021

STATE OF IOWA,

Appellee,

vs.

NICHOLAS DEAN WRIGHT,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Cerro Gordo County,

Adam D. Sauer, District Associate Judge.

A defendant appeals the denial of his motion to suppress evidence

based on the warrantless seizure of his trash. AFFIRMED ON

CONDITION AND REMANDED WITH DIRECTIONS.

McDonald, J., delivered the opinion of the court, in which Oxley and

McDermott, JJ., joined, and in which Appel, J., joined as to divisions I,

IV(B)–(E), and V. Appel, J., filed a special concurrence. Christensen, C.J.,

filed a dissenting opinion, in which Waterman and Mansfield, JJ., joined.

Waterman, J., filed a dissenting opinion, in which Christensen, C.J., and

Mansfield, J., joined. Mansfield, J., filed a dissenting opinion, in which

Christensen, C.J., and Waterman, J., joined.

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Colin C. Murphy (argued) of Gourley Rehkemper Lindholm, P.L.C.,

West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines (argued),

Assistant Attorney General, Carlyle D. Dalen, County Attorney, and

Steven D. Tynan, Assistant County Attorney, for appellee.

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McDONALD, Justice.

“Decency, security, and liberty alike demand that government

officials shall be subjected to the same rules of conduct that are commands

to the citizen.” Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct.

564, 575 (1928) (Brandeis, J., dissenting), overruled in part by Katz v.

United States, 389 U.S. 347, 88 S. Ct. 507 (1967), and Berger v. New York,

388 U.S. 41, 87 S. Ct. 1873 (1967). We are tasked in this case of

determining whether this bedrock constitutional principle prohibits a

peace officer engaged in general criminal investigation without a warrant

from taking a citizen’s opaque trash bags left outside for collection,

opening the trash bags, and rummaging through the papers and effects

contained therein.

I.

Nicholas Wright lives in Clear Lake. Like most municipalities, Clear

Lake regulates the “storage, collection and disposal of solid waste” to

protect the “health, safety and welfare” of its residents. Clear Lake, Iowa,

Code of Ordinances § 105.01 (2003). The city restricts the manner in

which residents can dispose of waste. See id. at §§ 105.05 (restricting

open burning), .06 (requiring separation of yard waste), .07 (prohibiting

littering), .08 (prohibiting open dumping). The city requires “the owner or

occupant of the premises served” to set out the solid waste containers for

collection once per week “at the curb or alley line.” Id. at §§ 105.10(3),

106.04. The city limits who may access and collect solid waste to licensed

and contracted collectors. See id. § 105.02(1) (defining collector); id.

§§ 106.01 (providing for collection service), .06 (granting collectors right of

entry), .07 (prohibiting solid waste collection without a city contract), .11

(setting forth licensing requirements). The city makes it “unlawful for any

person to . . . [t]ake or collect any solid waste which has been placed out

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for collection on any premises, unless such person is an authorized solid

waste collector.” Id. § 105.11(4). Violation of this ordinance is punishable

by a fine. See id. § 1.15.

Despite the ordinance making it unlawful for any person (other than

an authorized collector) to take solid waste placed out for collection, Officer

Brandon Heinz, on three occasions, during the dark of night, without

probable cause or a warrant, went into the alley behind Wright’s residence

to take Wright’s garbage bags and search through them to “obtain

information about what Mr. Wright may have been doing inside [his]

house.” More specifically, Officer Heinz was “looking for anything related

to drug activity.” Heinz focused his criminal investigation on Wright based

on information from Deputy Tami Cavett. She informed Heinz that a male

nicknamed “Beef” was selling drugs and lived near a local bar. Through

the course of his investigation, Heinz discovered Wright went by the

nickname “Beef” and lived three blocks from the bar.

The first time Heinz went through Wright’s papers and effects

occurred on September 11, 2017. Around 11:30 p.m. that night, Heinz

observed two garbage cans without lids at the edge of the alley behind

Wright’s residence. Heinz believed the garbage cans had been placed there

for waste collection the next morning. He testified he was able to access

the garbage bags without leaving the alley. The bags were opaque, and

Heinz “couldn’t see through them or anything.” He was not “able to

observe anything that led [him] to believe there was evidence of criminal

activity in the bag until [he] opened the bag.” Heinz “retrieved the garbage

bags and brought them to the police department where [he] went through

them.”

Heinz testified he “[s]earched through the contents for narcotics

related contraband.” He found empty poppy seed packages and fabric

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squares with circular brown stains around one inch in diameter and seeds

stuck to the fabric. He submitted the seeds and fabric squares to the

Division of Criminal Investigation (DCI) for testing. Heinz received the DCI

lab report on November 2, which confirmed the seeds were poppy seeds.

One fabric square tested positive for morphine. Two fabric squares tested

positive for a combination of morphine and cocaine.

After receiving test results from DCI, Heinz again took garbage bags

from the alley behind Wright’s home on the nights of November 6 and

November 20 and returned to the police station to search through the

bags. On November 6, Heinz found two pieces of mail addressed to Wright,

one from a bank and one from a telecommunications company. Heinz

found more fabric squares with brown stains and poppy seeds stuck to

them. On November 20, he found similar items as well as empty poppy

seed packages and a 10-pound poppy seed package that had 9.75 pounds

remaining in the package.

Heinz then applied for and was granted a search warrant. Probable

cause for the search warrant was predicated on the evidence obtained from

the warrantless seizure and search of Wright’s trash bags. The police

executed the warrant at Wright’s residence on November 21. They

discovered a baggie containing two grams of marijuana and several

capsules of Vyvanse, a prescription drug for which Wright had no

prescription.

The State charged Wright with three counts of unlawful possession

of drugs: (1) possession of a prescription drug without a valid prescription,

in violation of Iowa Code section 155A.21 (2017); (2) possession of

marijuana, in violation of Iowa Code section 124.401(5); and (3) possession

of Vyvanse, in violation of Iowa Code section 124.401(5).

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Wright timely filed a motion to suppress evidence. Wright argued

Heinz’s warrantless removal of the trash bags from Wright’s residence and

search of the papers and effects contained therein violated Wright’s federal

and state constitutional rights to be free from unreasonable seizures and

searches. Wright made two arguments in support of his motion. First, he

argued Heinz physically trespassed on his property. Second, he argued he

had a reasonable expectation of privacy in the contents contained in his

trash bags. Wright argued the search warrant ultimately issued was

without probable cause if the evidence obtained from the warrantless

seizures and searches of his trash bags were suppressed. The district

court denied the motion.

Pursuant to a plea agreement, the State subsequently dismissed

count one of the trial information. Following a trial on the minutes of

testimony, the district court found Wright guilty of counts two and three

and sentenced Wright to serve two days in jail.

Wright appealed, and we transferred the case to the court of appeals.

The court of appeals affirmed the district court’s denial of Wright’s motion

to suppress evidence. The court of appeals reasoned Heinz did not

unlawfully trespass on Wright’s property because there was no physical

intrusion into a constitutionally protected area. The court of appeals

reasoned Wright had no reasonable expectation of privacy in the contents

of his garbage under federal or state law.

We granted Wright’s application for further review. “On further

review, we have the discretion to review any issue raised on appeal.”

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255 (Iowa 2012) (quoting State

v. Marin, 788 N.W.2d 833, 836 (Iowa 2010), overruled on other grounds by

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016)). Where, “as here,

a defendant raises both federal and state constitutional claims, the court

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has discretion to consider either claim first or consider the claims

simultaneously.” State v. Pals, 805 N.W.2d 767, 772 (Iowa 2011). Because

Wright’s state constitutional claim is dispositive of the case, we exercise

our discretion to address only that claim. The court of appeals decision is

final as to Wright’s federal claim.

II.

The Iowa Constitution provides, “This Constitution shall be the

supreme law of the state, and any law inconsistent therewith, shall be

void.” Iowa Const. art. XII, § 1. The Iowa Constitution provides any law—

without regard to its source—inconsistent therewith “shall be void.” Id.

None of the departments of our state government are authorized—by bill,

order, rule, judicial decision, or otherwise—to make law or legalize conduct

infringing upon the minimum rights guaranteed in the Iowa Constitution.

We “must provide at a minimum the degree of protection [the constitution]

afforded when it was adopted.” United States v. Jones, 565 U.S. 400, 411,

132 S. Ct. 945, 953 (2012) (emphasis omitted).

In determining the minimum degree of protection the constitution

afforded when adopted, we generally look to the text of the constitution as

illuminated by the lamp of precedent, history, custom, and practice. See

Planned Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206, 247

(Iowa 2018) (Mansfield, J., dissenting) (beginning constitutional analysis

with the text and original understanding); State v. Crooks, 911 N.W.2d

153, 167 (Iowa 2018) (“In exercising our independent judgment, we are

‘guided by “the standards elaborated by controlling precedents and by

[our] own understanding and interpretation of the [Iowa Constitution’s]

text, history, meaning, and purpose.” ’ ” (alterations in original) (quoting

State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014))); State v. Green, 896

N.W.2d 770, 778 (Iowa 2017) (“[W]e interpret our constitution consistent

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with the text given to us by our founders through the lens of the facts and

circumstances of today.”); State v. Senn, 882 N.W.2d 1, 8 (Iowa 2016)

(“First and foremost, we give the words used by the framers their natural

and commonly-understood meaning. However, we may also examine the

constitutional history and consider the object to be attained or the evil to

be remedied as disclosed by the circumstances at the time of adoption.”

(quoting Star Equip., Ltd. v. State, 843 N.W.2d 446, 457–58 (Iowa 2014))).

This court is the final arbiter of the meaning of the Iowa

Constitution. While we give respectful consideration to the decisions of

the United States Supreme Court in its interpretation of parallel provisions

of the Federal Constitution, we have a duty to independently interpret the

Iowa Constitution. See State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019).

Our duty to independently interpret the Iowa Constitution holds even

“though the two provisions may 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)). On questions of state constitutional law, the

Supreme Court “is, in law and in fact, inferior in authority to the courts of

the States.” McClure v. Owen, 26 Iowa 243, 249 (1868); see also Minnesota

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

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

interpreting their state constitutions.”).

Our duty of independent interpretation is truly independent.

Federal constitutional law is not a framework or “floor” that dictates the

required doctrine or minimum content of the state constitution. See State

v. Ingram, 914 N.W.2d 794, 799 (Iowa 2018) (“Although the Iowa and

United States Constitutions have similarly worded search and seizure

provisions, that does not mean the two regimes and the cases under them

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may be conflated.”).1 “However useful that floor-ceiling metaphor may be,

it obscures the larger truth that the level of protection of rights under the

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

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

1272, 1281 n.30 (Wash. 1997) (en banc) (quoting Neil McCabe, The State

and Federal Religion Clauses: Differences of Degree and Kind, 5 St. Thomas

L. Rev. 49, 50 (1992)).2

In claims arising under the Iowa Constitution, the right question is

thus not whether the Iowa Constitution should be interpreted more

stringently or less stringently than its federal counterpart. “This court is

free to interpret our constitution to provide less or more protection than

the Federal Constitution.” Brown, 930 N.W.2d at 857 (McDonald, J.,

concurring specially). Instead,

The right question is what the [Iowa Constitution] means and

how it applies to the case at hand. The answer may turn out

1Although the Federal Constitution does not set a legal floor in terms of dictating

content of the Iowa Constitution, it does provide an effective floor in the practical sense

that government officials are required to comply with the more stringent standard.

2See also State v. Oliver, 372 S.E.2d 256, 259 (Ga. Ct. App. 1988) (“If anything,

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

exception to the bar against double jeopardy when the first trial ends in mistrial.”); State

v. Jackson, 503 S.E.2d 101, 103 (N.C. 1998) (“Strictly speaking, however, a state may

still construe a provision of its constitution as providing less rights than are guaranteed

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

(Okla. 1988) (Kauger, J., specially concurring) (per curiam) (recognizing that if the state

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

determined by federal law”); Ex parte Tucci, 859 S.W.2d 1, 32 n.34 (Tex. 1993) (Phillips,

C.J., concurring) (“Literally read, this position makes no logical sense. If our text was

written at a different time by different people with different concerns, then the protection

it affords may be greater, lesser, or the same as that provided by a different provision in

the United States Constitution.”); Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App.

1998) (en banc) (“The Supremacy Clause means that, in practical terms, persons will

always be able to avail themselves of the greater right. This is very important to litigants

and their counsel, who are naturally and properly result-oriented. But it does not mean

that a court, faithfully interpreting state laws, can only find in them protections that

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

state law may “provide a lesser level of protection,” in which case the court addresses the

federal claim).

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the same as it would under federal law. The [Iowa

Constitution] may prove to be more protective than federal

law. The [Iowa Constitution] also may be less protective. In

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

federal law, assuming it has been raised.

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

L. Rev. 165, 179 (1984) [hereinafter Linde]; see also Massachusetts v.

Upton, 466 U.S. 727, 738, 104 S. Ct. 2085, 2091 (1984) (Stevens, J.,

concurring in the judgment) (per curiam) (quoting Linde, 18 Ga. L. Rev. at

179).

III.

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.3

A.

At the time of America’s founding, the prohibition against

“unreasonable” seizures and searches had a particular meaning. John

Adams first introduced the term “unreasonable” into search and seizure

law in his draft of the 1780 Massachusetts Constitution. See

Commonwealth v. Haynes, 116 A.3d 640, 650 (Pa. Super. Ct. 2015).

“Adams’s authorship reveals that ‘unreasonable’ was derived from Sir

Edward Coke’s earlier use of ‘against reason’ as a synonym for inherent

illegality or unconstitutionality.” Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 Mich. L. Rev. 547, 554–55 (1999).

3The Fourth Amendment to the United States Constitution is materially

indistinguishable from article I, section 8 of the Iowa Constitution. Because our search

and seizure jurisprudence is intertwined with federal search and seizure jurisprudence,

we will discuss federal cases as relevant.

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The Fourth Amendment did not refer to reasonableness in a

relativistic, balancing sense. “Originally, the word ‘unreasonable’ in the

Fourth Amendment likely meant ‘against reason’—as in ‘against the

reason of the common law.’ ” Carpenter v. United States, 585 U.S. ___, ___,

138 S. Ct. 2206, 2243 (2018) (Thomas, J., dissenting) (quoting Laura K.

Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1270

(2016)); see also Torres v. Madrid, 592 U.S. ___, ___, 141 S. Ct. 989, 996

(2021) (“Early American courts . . . embraced other common law principles

of search and seizure.”); United States v. Carloss, 818 F.3d 988, 1006 (10th

Cir. 2016) (Gorsuch, J., dissenting) (“[T]he Fourth Amendment, at a

minimum, protects the people against searches of their persons, houses,

papers, and effects to the same degree the common law protected the

people against such things at the time of the founding, for in prohibiting

‘unreasonable’ searches the Amendment incorporated existing common

law restrictions on the state’s investigative authority.”). Justice Story, in

his leading treatise on the Federal Constitution, stated the prohibition

against unreasonable seizures and searches “is little more than the

affirmance of a great constitutional doctrine of the common law.” 3 Joseph

Story, Commentaries on the Constitution of the United States §§ 1894–1895,

at 748 (1833). “[B]y prohibiting ‘unreasonable’ searches and seizures in

the Fourth Amendment, the Founders ensured that the newly created

Congress could not use legislation to abolish the established common-law

rules of search and seizure.” Carpenter, 585 U.S. at ___, 138 S. Ct. at

2243.

B.

The original understanding of article I, section 8 is in accord with

the original understanding of the Fourth Amendment. See Pals, 805

N.W.2d at 786 (Waterman, J., dissenting). As we long ago explained, “The

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term ‘unreasonable’ in the constitutions of the States, has allusion to what

had been practiced before our revolution, and especially to general search

warrants, in which the person, place or thing was not described.” Santo

v. State, 2 Iowa (2 Clarke) 165, 215 (1855).

Consistent with this understanding, we have long held that a peace

officer engaged in general criminal investigation acted unreasonably and

unlawfully when he trespassed against a citizen without first obtaining a

warrant based on probable cause. See Godfrey v. State, 898 N.W.2d 844,

887–88 (Iowa 2017) (Mansfield, J., dissenting) (recognizing officer conduct

was governed by common law trespass actions). In the colorful case of

McClurg v. Brenton, the mayor, “the chief of police, the captain of the night

force, a city alderman, the city physician, the ‘man with the hounds,’ and

various other gentlemen, presumably volunteers in the cause of retributive

justice,” showed up at the plaintiff’s home at night without a warrant to

search for allegedly stolen chickens. 123 Iowa 368, 369–70, 98 N.W. 881,

881–82 (1904). They gained entry into the home and the chicken house

and conducted what was described as a “boisterous” search. Id. at 371,

98 N.W. at 882 (noting a “member of the party became somewhat confused

as to the real object of the search, and demanded to know whether there

was ‘any beer in the cellar’ ”). The plaintiff sued for trespass. See id. at

372, 98 N.W. at 882. In that case, we stated the great principle underlying

the prohibition against unreasonable search and seizure:

The right of the citizen to occupy and enjoy his home, however

mean or humble, free from arbitrary invasion and search, has

for centuries been protected with the most solicitous care by

every court in the English-speaking world, from Magna Charta

down to the present, and is embodied in every bill of rights

defining the limits of governmental power in our own republic.

The mere fact that a man is an officer, whether of high

or low degree, gives him no more right than is possessed by

the ordinary private citizen to break in upon the privacy of a

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home and subject its occupants to the indignity of a search

for the evidences of crime, without a legal warrant procured

for that purpose. No amount of incriminating evidence,

whatever its source, will supply the place of such warrant. At

the closed door of the home, be it palace or hovel, even

bloodhounds must wait till the law, by authoritative process,

bids it open.

Id. at 371–72, 98 N.W. at 882.

McClurg involved the search of a home and outbuildings, but the

same prohibition against unlawful seizures and searches extended outside

the home to seizures of and interferences with personal property. See

Ingram, 914 N.W.2d at 817 (stating citizens have a protected interest in

papers and effects outside the home).

[T]here is no evidence at all that [the Framers] intended to

exclude from protection of the Clause all searches occurring

outside the home. The absence of a contemporary outcry

against warrantless searches in public places was because,

aside from searches incident to arrest, such warrantless

searches were not a large issue in colonial America.

United States v. Chadwick, 433 U.S. 1, 8, 97 S. Ct. 2476, 2482 (1977),

abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982 (1991).

In Pomroy & Co. v. Parmlee, the plaintiffs sued out a criminal

warrant and civil writ of attachment in Scott County against the defendant

for the purpose of attaching and levying on the defendant’s property. 9

Iowa 140, 143–44 (1859). The sheriff of Scott County seized the

defendant’s property, a trunk, in Poweshiek County and returned it to

Scott County whereupon it was opened and searched and a bag of gold

coin was found in it. See id. at 144–45. The plaintiffs sought to levy on

the gold. See id. at 145. The defendant objected on the ground the sheriff

had no authority under the writ of attachment to seize property outside

Scott County. See id. at 144. We agreed: “The authority (of the sheriff) is

given upon this restriction and condition, that it shall not be abused or

exceeded, or colorably used to effect an unlawful purpose.” Id. at 146

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(alteration in original) (quoting Ilsley v. Nichols, 29 Mass. (12 Pick.) 270,

281 (1831)). We concluded the sheriff’s seizure of the defendant’s trunk

outside his county was “a great abuse of the law . . . and of the authority

of its officer.” Id. at 147. We explained, “The law will operate

retrospectively to defeat all acts thus done under color of lawful authority,

when exceeded; and a fortiori, will it operate prospectively, to prevent the

acquisition of any lawful rights, by the excess and abuse of an authority

given for useful and beneficial purposes.” Id. at 146–47 (quoting Ilsley, 29

Mass. (12 Pick.) at 281).

Similarly, in State v. Ward, a pharmacist was prosecuted for illegal

liquor sales. 75 Iowa 637, 36 N.W. 765 (1888). A constable entered the

defendant’s car with “no warrant, and he seized the liquor therein, and

removed a portion of it on a dray near the car before the warrant was

placed in his hands.” Id. The court explained the officer “may have been

guilty of a trespass.” Id. at 639, 36 N.W. at 767. The court further

explained that although the “search and seizure may have been illegally

made in the first instance,” that was not a defense to the charge. Id. at

640, 36 N.W. at 767.4

4The disposition of the case made sense at the time because Iowa had not yet

adopted an exclusionary rule. At that time, those subject to unlawful seizures and

searches could pursue civil actions for nominal, actual, and punitive damages against

the offending officer and his sureties. See McClurg, 123 Iowa at 373, 98 N.W. at 883 (“If

the jury should find for plaintiff––that the wrongful search was made . . . —they could, in

addition to actual damages, assess a greater or less sum against the defendants by way

of punishment or as exemplary damages.”); Strunk v. Ocheltree, 11 Iowa 158, 159–60

(1860) (“The defendant levied upon the property and took possession of it by virtue of his

office, and sold the same when he had no right to do so. . . . The wrong was committed

by color of his office, a wrong which his sureties obligated themselves he would not do,

and for which they should be held responsible.”); Plummer v. Harbut, 5 Iowa (5 Clarke)

308, 314 (1857) (“If defendants, in executing the process, acted in good faith, and in their

entry upon plaintiff’s premises, were guilty of no oppression, and made no disturbance,

further than was necessary in making the seizure, the trespass, even if without authority,

was nominal only, and nominal damages must limit the extent of his recovery.”).

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As our precedents demonstrate, under Iowa law “[a] trespassing

officer is liable for all wrong done in an illegal search or seizure. The

constitutional provision is a sacred right, and one which the courts will

rigidly enforce.” State v. Tonn, 195 Iowa 94, 106, 191 N.W. 530, 535

(1923), abrogated by State v. Hagen, 258 Iowa 196, 137 N.W.2d 895

(1965); see also Godfrey, 898 N.W.2d at 887 (explaining police conduct

was regulated by common law trespass actions).

C.

Iowa adhered to this original understanding of article I, section 8

until the era of incorporation of the Bill of Rights into the Fourteenth

Amendment. Although not compelled to construe article I, section 8 to

follow the Supreme Court’s construction of the Fourth and Fourteenth

Amendments, see Brown, 930 N.W.2d at 857–58 (discussing incorporation

doctrine and state constitutional interpretation), this court nonetheless

began to do so. See Kain v. State, 378 N.W.2d 900, 902 (Iowa 1985) (“[O]ur

interpretation of article I, section 8 has quite consistently tracked with

prevailing federal interpretations . . . .”). As a consequence, this court’s

jurisprudence changed rather dramatically in conjunction with changes in

the Supreme Court’s jurisprudence. The Supreme Court moved away from

the original understanding of the Fourth Amendment right in two

significant respects. First, the Court imposed a modern, relativistic

meaning on the word “unreasonable.” See Ingram, 914 N.W.2d at 804

(“[T]he new innovative touchstone under the more recent Supreme Court

cases is a free-floating and open-ended concept of ‘reasonableness’ . . . .”).

Second, in Katz v. United States, the Court refocused the inquiry from

common law trespass to the aggrieved party’s reasonable expectation of

privacy. See 389 U.S. at 353, 88 S. Ct. at 512.

16

The Supreme Court’s first doctrinal change involved a change in the

interpretation of “unreasonable.” The Supreme Court adopted a

relativistic sense of reasonableness in Carroll v. United States, 267 U.S.

132, 147, 45 S. Ct. 280, 283 (1925). Dealing with practical problems

related to the enforcement of prohibition, Chief Justice Taft loosened

restrictions on the exercise of official authority and explained the “Fourth

Amendment does not denounce all searches or seizures, but only such as

are unreasonable.” Id. However, he did not mean unreasonable as against

the common law. Instead, he meant unreasonable in a relativistic sense—

as in determining whether the action was reasonable under the

circumstances. See id. at 149, 45 S. Ct. at 283–84 (describing valid

searches and seizures as “reasonably arising out of circumstances known

to the seizing officer”).

The Carroll Court’s reinterpretation of the Fourth Amendment

gained traction. In United States v. Rabinowitz, the Court stated the

legality of “searches turn[s] upon the reasonableness under all the

circumstances and not upon the practicability of procuring a search

warrant.” 339 U.S. 56, 65–66, 70 S. Ct. 430, 435 (1950), overruled in part

by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969), abrogation

recognized by Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419 (2011).

By the 1970s, the Court concluded the “touchstone” of the Fourth

Amendment was “the reasonableness in all the circumstances of the

particular governmental invasion of a citizen’s personal security.”

Pennsylvania v. Mimms, 434 U.S. 106, 108–09, 98 S. Ct. 330, 332 (1977)

(per curiam) (second quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868,

1878–79 (1968)). The Court continues to hold “the ultimate touchstone of

the Fourth Amendment is ‘reasonableness.’ ” Riley v. California, 573 U.S.

373, 381–82, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart,

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547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006)). Under modern doctrine,

reasonableness means determining the constitutionality of police conduct

“by assessing, on the one hand, the degree to which it intrudes upon an

individual’s privacy and, on the other, the degree to which it is needed for

the promotion of legitimate governmental interests.” Id. at 385, 134 S. Ct.

at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct.

1297, 1300 (1999)).

The second significant doctrinal change irrupted from the pen of

Justice Harlan in his concurrence in Katz. See Carpenter, 585 U.S. at ___,

138 S. Ct. at 2237–38 (discussing history of Katz). In Katz, the Court

asserted “the Fourth Amendment protects people, not places” and “what

[a person] seeks to preserve as private . . . may be constitutionally

protected.” 389 U.S. at 351, 88 S. Ct. at 511. Justice Harlan, in a

concurring opinion, articulated an expectation-of-privacy test. See id. at

361, 88 S. Ct. at 516 (Harlan, J., concurring). He “identified a ‘twofold

requirement’ to determine when the protections of the Fourth Amendment

apply: ‘first that a person have exhibited an actual (subjective) expectation

of privacy and, second, that the expectation be one that society is prepared

to recognize as “reasonable.” ’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at

2237 (quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516).

Justice Harlan’s expectation-of-privacy standard quickly became

the primary standard for determining the constitutionality of searches

under the Fourth Amendment. The following year, in Terry v. Ohio, the

Court explained that “wherever an individual may harbor a reasonable

‘expectation of privacy,’ he is entitled to be free from unreasonable

governmental intrusion.” 392 U.S. at 9, 88 S. Ct. at 1873 (citation omitted)

(quoting Katz, 389 U.S. at 361, 88 S. Ct. at 516). By 1979, the Court

stated Katz was the “lodestar” for evaluating claims arising under the

18

Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 739, 99 S. Ct.

2577, 2579–80 (1979). Of note, the Supreme Court’s expectation-of-

privacy standard is not a standard to determine whether a search is

“unreasonable” within the meaning of the Fourth Amendment. Instead, it

is a threshold standard to determine whether a “search” occurred within

the meaning of the Fourth Amendment. See Jones, 565 U.S. at 404–06,

132 S. Ct. 949–50.

This court generally followed these doctrinal developments to

adjudicate claims arising under article I, section 8. In doing so, we

acknowledged the shift from the historic approach. See State v. Davis, 228

N.W.2d 67, 71–72 (Iowa 1975) (“The issue where to draw the line has

spawned a vast body of litigation. The rationale of modern decisions

ordinarily posits the determination not so much on the character of the

property on which the evidence is observed (i.e., public vis-a-vis private,

curtilage vis-a-vis open area) but rather on existence of a reasonable

expectation of privacy.”), overruled by State v. Hanes, 790 N.W.2d 545

(Iowa 2010). Despite the incongruence with our own precedents, we

concluded we had “an interest in harmonizing our constitutional decisions

. . . when reasonably possible.” State v. Ochoa, 792 N.W.2d 260, 265 (Iowa

2010) (omission in original) (quoting State v. Groff, 323 N.W.2d 204, 207–

08 (Iowa 1982)). By 1985, we declared that “ ‘our interpretation of article

I, section 8 has quite consistently tracked with prevailing federal

interpretations’ in deciding search and seizure issues.” Id. at 266 (quoting

Kain, 378 N.W.2d at 902). We did so in “a ‘lockstep’ approach to

interpretation of state constitutional provisions.” Id.

D.

In recent years, this court has moved away from the lockstep

approach and taken a more historical approach in interpreting article I,

19

section 8. See State v. Coleman, 890 N.W.2d 284, 296 (Iowa 2017) (“As

has been thoroughly canvassed in some of our other opinions, the Iowa

Supreme Court has a long history of independent adjudication of state

constitutional issues. In recent decades, we have reemphasized that

independent constitutional tradition.”).

In State v. Ochoa, we canvassed the relevant historical materials and

concluded our constitution was “intended to provide a limit on arbitrary

searches and seizures, particularly those involving the home.” 792 N.W.2d

at 272. We explained the clause was intended to reject the issuance of

“general warrants without probable cause and without particularity as

reflected in pre-Revolutionary practice.” Id. We also explained this

prohibition necessarily disallowed warrantless searches circumventing the

prohibition against general warrants. See id. at 273 (“It would make no

sense to restrict general warrants and yet allow the same type of broad,

unlimited search without a warrant”). We further noted the constitutional

limitation on the exercise of warrantless authority was not limited to

contexts involving infringements on privacy. See id. at 289 (“Indeed, to

some extent, search and seizure protections must protect more than mere

expectations of privacy if they are to have any bite at all.”).

Two years later, in State v. Short, we noted the deficiencies inherent

in the modern general reasonableness standard:

[A]n interpretation that focuses on the reasonableness clause

as the touchstone of search and seizure law sets up the

intellectual machinery to engulf the warrant clause and make

its mandatory provision ephemeral. The search and seizure

protections of article I, section 8 would be subject to

reasonability determinations by shifting four-member

majorities of this court, based upon pragmatic considerations.

Members of this court—indeed any court—can come up with

ingenious explanations of how just about any search is

reasonable. The cautionary words of Anthony Amsterdam in

his classic study on the Fourth Amendment that reliance on

reasonability threatens to convert “the [F]ourth [A]mendment

20

into one immense Rorschach blot” has even greater urgency

today than it did forty years ago.

851 N.W.2d 474, 501–02 (Iowa 2014) (alterations in original) (citations

omitted) (quoting Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 393 (1974)).

Like our court with respect to article I, section 8, the Supreme Court

recently has moved toward a more historical approach to the Fourth

Amendment. See Torres, 592 U.S. at ___, 141 S. Ct. at 995–98, 1000–02

(discussing common law understanding of the Fourth Amendment);

Virginia v. Moore, 553 U.S. 164, 168, 128 S. Ct. 1598, 1602 (2008) (“In

determining whether a search or seizure is unreasonable, we begin with

history. We look to the statutes and common law of the founding era to

determine the norms that the Fourth Amendment was meant to

preserve.”); Atwater v. City of Lago Vista, 532 U.S. 318, 326, 121 S. Ct.

1536, 1543 (2001) (stating the Court is guided by the common law at the

time of the framing); Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct.

1914, 1916 (1995) (“In evaluating the scope of this right, we have looked

to the traditional protections against unreasonable searches and seizures

afforded by the common law at the time of the framing.”).

In United States v. Jones, the Court held “that the Government’s

installation of a GPS device on a target’s vehicle, and its use of that device

to monitor the vehicle’s movements, constitutes a ‘search’ ” within the

meaning of the Fourth Amendment and was thus unlawful when done

without a warrant. 565 U.S. at 404, 132 S. Ct. at 949 (footnote omitted).

The Court explained Katz deviated from the Court’s traditional and

historical “property-based approach” to the Fourth Amendment. Id. at

405–06, 132 S. Ct. at 950. While the Court did not repudiate Katz, it

explained Katz was accretive to and not a substitute for the old doctrine.

21

See id. at 407, 132 S. Ct. at 951 (“Katz . . . established that ‘property rights

are not the sole measure of Fourth Amendment violations,’ [and] did not

‘snuf[f] out the previously recognized protection for property.’ ” (second

alteration in original) (quoting Soldal v. Cook County, 506 U.S. 56, 64, 113

S. Ct. 538, 545 (1992))).

The following year, in Florida v. Jardines, the Court held a peace

officer conducted an unconstitutional search when the officer walked onto

a homeowner’s porch with a drug-sniffing dog to investigate the contents

of the home. 569 U.S. 1, 9–10, 133 S. Ct. 1409, 1416–17 (2013). The

Court explained the peace officer acting without a warrant had the right to

do what “any private citizen might do.” Id. at 8, 133 S. Ct. at 1416 (quoting

Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011)).

However, the officer exceeded the license afforded to private citizens:

“[S]ocial norms that invite a visitor to the front door do not invite him there

to conduct a search.” Id. at 9, 133 S. Ct. at 1416. The Court concluded

law enforcement’s use of the drug-sniffing dog to explore the area around

the home was a search under the Fourth Amendment because the conduct

was an unlicensed physical intrusion. See id. Justice Kagan, joined by

Justices Ginsburg and Sotomayor, concurred in the opinion. See id. at 12,

133 S. Ct. at 1418 (Kagan, J., concurring). In their view, the peace officer,

in exceeding the scope of the license afforded a private citizen by using a

drug dog, committed a trespass at common law and invaded the

defendant’s privacy. See id. at 13, 133 S. Ct. at 1418 (“Was this activity a

trespass? Yes, as the Court holds today. Was it also an invasion of

privacy? Yes, that as well.”).

This court and the Supreme Court’s return to the historical

understandings of seizure and search jurisprudence, to some degree, was

born of necessity. Current Fourth Amendment jurisprudence is a mess.

22

See Short, 851 N.W.2d at 488 (noting scholars characterize the

jurisprudence as “complex and contradictory” (quoting Akhil Reed Amar,

Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 758 (1994))).

While Katz became “ ‘the basis of a new formula of fourth amendment

coverage,’ it can hardly be said that the Court produced clarity where

theretofore there had been uncertainty. If anything, the exact opposite

has occurred.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 2.1(b), at 597 (6th ed. 2020) [hereinafter LaFave]

(footnote omitted). “The pre-Katz rule . . . was ‘a workable tool for the

reasoning of the courts.’ But the Katz rule . . . is, by comparison ‘difficult

to apply.’ ” Id. (footnotes omitted); see also Morgan Cloud, Pragmatism,

Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. Rev.

199, 253 (1993) (“Over time expectations analysis has produced only an

amorphous formula that allows the Justices to treat the fourth

amendment as an instrument for achieving social goals approved by

shifting majorities on the Court.”); David Gray, The Fourth Amendment

Categorical Imperative, 116 Mich. L. Rev. Online 14, 14–18 (2017)

(explaining how the Katz decision made “current Fourth Amendment

doctrine . . . unfounded, incoherent, and dangerous”). This criticism of

the Supreme Court’s doctrine is widely shared. See Short, 851 N.W.2d at

488 (collecting commentators’ criticisms); William Baude & James Y.

Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev.

1821, 1825 (2016) [hereinafter Baude & Stern] (“The reasonable

expectation of privacy concept has other serious defects, including its

ambiguous meaning, its subjective analysis, its unpredictable application,

its unsuitability for judicial administration, and its potential circularity.

We are happy to repeat these criticisms but we are hardly the first to raise

23

them. They have been exhaustively developed in Fourth Amendment

scholarship over the last half-century.”).

We would normally be reluctant to voice any such criticism of the

Supreme Court’s jurisprudence, but members of the Court also are critical

of its jurisprudence. In a dissent highly critical of the modern regime,

Justice Thomas recently noted:

Jurists and commentators tasked with deciphering our

jurisprudence have described the Katz regime as “an

unpredictable jumble,” “a mass of contradictions and

obscurities,” “all over the map,” “riddled with inconsistency

and incoherence,” “a series of inconsistent and bizarre results

that [the Court] has left entirely undefended,” “unstable,”

“chameleon-like,” “ ‘notoriously unhelpful,’ ” “a conclusion

rather than a starting point for analysis,” “distressingly

unmanageable,” “a dismal failure,” “flawed to the core,”

“unadorned fiat,” and “inspired by the kind of logic that

produced Rube Goldberg’s bizarre contraptions.” Even

Justice Harlan, four years after penning his concurrence in

Katz, confessed that the test encouraged “the substitution of

words for analysis.” United States v. White, 401 U.S. 745, 786,

91 S. Ct. 1122, 28 L.Ed.2d 453 (1971) (dissenting opinion).

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2244 (alterations in original)

(footnote omitted).

Other Justices share Justice Thomas’s criticism of the Katz regime.

Justice Gorsuch explained Katz was contrary to the text and original

understanding of the Fourth Amendment:

Katz’s problems start with the text and original

understanding of the Fourth Amendment . . . . The

Amendment’s protections do not depend on the breach of

some abstract “expectation of privacy” whose contours are left

to the judicial imagination. Much more concretely, it protects

your “person,” and your “houses, papers, and effects.” Nor

does your right to bring a Fourth Amendment claim depend

on whether a judge happens to agree that your subjective

expectation to privacy is a “reasonable” one. Under its plain

terms, the Amendment grants you the right to invoke its

guarantees whenever one of your protected things (your

person, your house, your papers, or your effects) is

unreasonably searched or seized. Period.

24

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2264 (Gorsuch, J., dissenting).

In fact, “each of the Justices on the Carpenter Court, including those in the

majority and all of the dissenters, has, at some point, either authored or

joined an opinion critical of Katz, or at least conceding the difficulty of

applying it[].” Nicholas A. Kahn-Fogel, Katz, Carpenter, and Classical

Conservatism, 29 Cornell J.L. & Pub. Pol’y 95, 106 (2019).

E.

“Fourth Amendment jurisprudence is in flux . . . .” Everett v. State,

186 A.3d 1224, 1235 (Del. 2018). There are competing, inconsistent

doctrines governing seizure and search law—the original meaning, the

“touchstone” of reasonableness, and the “lodestar” of Katz. Given the

uncertainty and lack of clarity in federal search and seizure jurisprudence,

we conclude it is no longer tenable to follow federal precedents in lockstep.

Article I, section 8, as originally understood, was meant to provide the

same protections as the Fourth Amendment, as originally understood, but

the Supreme Court’s interpretation and construction of the Fourth

Amendment has deviated from the text and original meaning. Respectful

consideration of the Supreme Court’s precedents does not require

adherence to federal doctrine that members of that great Court, other

jurists, and commentators all acknowledge departs from the text and

original meaning of the constitutional prohibition against unreasonable

seizures and searches.

As discussed above, a survey of the relevant text, history, and

precedents shows article I, section 8’s prohibition against unreasonable

searches and seizures was tied to common law trespass. In light of that

understanding, we hold a peace officer engaged in general criminal

investigation acts unreasonably under article I, section 8 when the peace

officer commits a trespass against a citizen’s house, papers, or effects

25

without first obtaining a warrant based “on probable cause, supported by

oath or affirmation, particularly describing the place to be searched, and

the persons and things to be seized.” Iowa Const. art. I, § 8.5

IV.

We now directly address Wright’s claim that Officer Heinz violated

his state constitutional right under article I, section 8. Wright has two

separate and distinct bases for challenging the warrantless seizures and

searches. First, relying on the common law understanding of seizure and

search law, Wright argues Heinz physically trespassed on Wright’s

property and thus the warrantless search violated article I, section 8.

Second, relying on the expectation-of-privacy approach to seizure and

search law, Wright argues Heinz violated article I, section 8 by invading

Wright’s expectation of privacy in his garbage bags. It is the State’s burden

5The dissents are directed at monsters of their own making. The dissenters argue

that the court’s holding—that “if a private citizen can’t do it, the police can’t do it either”—

is not supported by text or history. Except that is not what we hold. We hold that article

I, section 8 prohibits an officer engaged in general criminal investigation from conducting

a search or seizure that constitutes a trespass on a person’s house, papers, or effects

without first obtaining a warrant.

None of the dissenters disagree that article I, section 8, as originally understood,

prohibited warrantless trespassory searches and seizures. The dissenters fail to

recognize that what constitutes a trespass can change over time without changing the

original meaning of article I, section 8. See Phillips v. Wash. Legal Found., 524 U.S. 156,

164, 118 S. Ct. 1925, 1930 (1998) (“[T]he existence of a property interest is determined

by reference to ‘existing rules or understandings that stem from an independent source

such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92

S. Ct. 2701, 2709 (1972))); Orin S. Kerr, The Curious History of Fourth Amendment

Searches, 2012 Sup. Ct. Rev. 67, 93 (2012) [hereinafter Kerr] (“Changes in trespass law

could be recognized as changing the scope of protections without truly changing the

Fourth Amendment . . . .”). Thus, one of the dissenting justices errs in arguing that

scavenging through a citizen’s trash cannot constitute a trespass because scavenging

was common at the time of the founding. The dissenter confuses original meaning with

original expected application. The original meaning of article I, section 8 was to prohibit

an officer engaged in general criminal investigation from committing a trespass against a

citizen’s person, house, papers, and effects without first obtaining a warrant. While

scavenging may have been allowed then, Iowa law disallows it now. The scope of what

constitutes a trespass has changed, not the meaning of article I, section 8. See Phillips,

524 U.S. at 164, 118 S. Ct. at 1930; Kerr, 2012 Sup. Ct. Rev. at 93.

26

to prove that a warrantless search or seizure is constitutional. See Ingram,

914 N.W.2d at 824 (Mansfield, J., concurring specially).

A.

We first consider whether Heinz’s conduct amounted to a seizure or

search within the meaning of article I, section 8. There is no evidence

these terms were terms of art at the time of the founding. See Carpenter,

585 U.S. at ___, 138 S. Ct. at 2238 (Thomas, J., dissenting) (stating the

word “search” “was probably not a term of art, as it does not appear in

legal dictionaries from the era”). “No literal or mechanical approach should

be adopted in determining what may constitute a search and seizure.”

State v. Raymond, 258 Iowa 1339, 1347, 142 N.W.2d 444, 449 (1966). We

thus give the words their fair and ordinary meaning.

It is apparent Heinz seized the garbage bags and papers and effects

contained therein under any fair and ordinary definition of the term

seizure. “A ‘seizure’ of property occurs when there is some meaningful

interference” with the property. United States v. Jacobsen, 466 U.S. 109,

113, 104 S. Ct. 1652, 1656 (1984). In Pomroy & Co., we concluded a

sheriff unlawfully seized a trunk and the contents contained therein when

the sheriff took possession of the items and transported them from one

county to another. See 9 Iowa at 144–47. In Ward, we concluded a

constable unlawfully seized a pharmacist’s liquor when the constable took

possession of the liquor. See 75 Iowa at 639–40, 36 N.W. at 766–67. As

in those cases, Heinz meaningfully interfered with and “seized” the garbage

bags and papers and effects contained therein when he removed the

garbage bags from Wright’s trash bins, took possession of them, and

transported them to the police station for further inspection. See Torres,

592 U.S. at ___, 141 S. Ct. at 995 (“It is true that, when speaking of

property, ‘[f]rom the time of the founding to the present, the word “seizure”

27

has meant a “taking possession.” ’ ” (alteration in original) (quoting

California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 1549 (1991))).

It is equally apparent Heinz engaged in a search when he opened the

garbage bags and rummaged through them. “When the Fourth

Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or

through for the purpose of finding something; to explore; to examine by

inspection; as, to search the house for a book; to search the wood for a

thief.’ ” Kyllo v. United States, 533 U.S. 27, 32 n.1, 121 S. Ct. 2038, 2042

n.1 (2001) (alteration in original) (emphases omitted) (quoting N. Webster,

An American Dictionary of the English Language 66 (1828) (reprint 6th ed.

1989)); see also Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238

(summarizing founding era definitions). Historical legal dictionaries

defined a search as an examination “with a view to the discovery of

contraband or illicit or stolen property, or some evidence of guilt to be used

in the prosecution of a criminal action for some crime or offense with which

he is charged,” Henry Campbell Black, A Dictionary of Law 1069 (1st ed.

1891), or an examination conducted for the “purpose of discovering proof

of his guilt in relation to some crime or misdemeanor of which he is

accused.” 2 John Bouvier, A Law Dictionary 498 (3d ed. 1848). Here,

Heinz testified he opened the garbage to “obtain information about what

Mr. Wright may have been doing inside [his] house” and obtain evidence

“related to drug activity.” A constitutional search occurs whenever the

government commits a physical trespass against property, even where de

minimis, conjoined with “an attempt to find something or to obtain

information.” Jones, 565 U.S. at 408 n.5, 132 S. Ct. at 951 n.5; see also

Jardines, 569 U.S. at 5, 133 S. Ct. at 1414 (“When ‘the Government

obtains information by physically intruding’ on persons, houses, papers,

or effects, ‘a “search” within the original meaning of the Fourth

28

Amendment’ has ‘undoubtedly occurred.’ ” (quoting Jones, 565 U.S. at 406

n.3, 132 S. Ct. at 950 n.3)).

For the purposes of determining whether a seizure or search

occurred, it is not relevant whether Wright had an expectation of privacy

in the garbage bags or the contents.

The Katz test distorts the original meaning of

“searc[h]”—the word in the Fourth Amendment that it

purports to define. Under the Katz test, the government

conducts a search anytime it violates someone’s “reasonable

expectation of privacy.” That is not a normal definition of the

word “search.”

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2238 (alteration in original)

(citations omitted). To bring greater coherence to our seizure and search

jurisprudence, we hold the expectation-of-privacy test is relevant only to

the question of whether a seizure or search was unreasonable within the

meaning of article I, section 8 and not whether a seizure or search has

occurred. See Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469, 477

(1998) (Scalia, J., concurring) (explaining that when Katz is applied “to

determine whether a ‘search or seizure’ within the meaning of the

Constitution has occurred (as opposed to whether that ‘search or seizure’

is an ‘unreasonable’ one), it has no plausible foundation in the text of the

Fourth Amendment” (emphasis omitted)).

B.

We next address whether the items Heinz seized and searched were

protected papers and effects within the meaning of article I, section 8.

The word papers is self-explanatory, but the word effects requires

some explanation. The modern understanding of the term effects is

“[m]ovable property; goods.” Effects, Black’s Law Dictionary (11th ed.

2019). This is consistent with the original understanding. “The Framers

would have understood the term ‘effects’ to be limited to personal, rather

29

than real, property.” Oliver v. United States, 466 U.S. 170, 177 n.7, 104

S. Ct. 1735, 1740 n.7 (1984).

We have little trouble concluding the property at issue is protected

within the meaning of article I, section 8. Opaque garbage bags are

containers, and containers are an “effect” as originally understood. See

United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171 (1982).

The fact that the containers happen to be garbage bags rather than, say,

expensive luggage, is not of constitutional consequence. See id. There is

no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers.”

Id. “Even though such a distinction perhaps could evolve in a series of

cases in which paper bags, locked trunks, lunch buckets, and orange

crates were placed on one side of the line or the other, the central purpose

of the Fourth Amendment forecloses such a distinction.” Id. (footnote

omitted). In addition, Heinz opened the garbage bags and searched

through the contents. The contents included other personal property,

including two pieces of mail addressed to Wright. Letters are certainly

papers. Further, “[l]etters . . . are in the general class of effects,” and

“warrantless searches of such effects are presumptively unreasonable.”

Jacobsen, 466 U.S. at 114, 104 S. Ct. at 1657.

C.

Heinz’s seizure and search of the papers and effects would be

inconsequential if the papers and effects did not belong to Wright. Article

I, section 8 provides that people have the right to be secure in “their”

persons, houses, papers, and effects. “Although phrased in the plural,

‘[t]he obvious meaning of [“their”] is that each person has the right to be

secure against unreasonable searches and seizures in his own person,

house, papers, and effects.’ ” Carpenter, 585 U.S. at ___, 138 S. Ct. at

30

2241–42 (alterations in original) (quoting Carter, 525 U.S. at 92, 119 S. Ct.

at 475).

The State contends the papers and effects Heinz seized were not

Wright’s papers and effects because Wright abandoned them. Under Iowa

law, “[a]bandonment is shown by proof that the owner intends to abandon

the property and has voluntarily relinquished all right, title and interest in

the property.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406

(Iowa 1995) (en banc) (emphasis added). “Abandonment, however, entails

a relinquishment of ownership interests without regard for who becomes

the next owner, such that the items in question can be considered ‘bona

vacantia’—a property law term meaning ‘unowned’—and available for the

taking by any finder.” Tanner M. Russo, Note, Garbage Pulls Under the

Physical Trespass Test, 105 Va. L. Rev. 1217, 1246–47 (2019) [hereinafter

Russo] (footnote omitted).

Here, Wright did not abandon all right, title, and interest in the

property. Local ordinances provide only a licensed collector under

contract with the city may collect garbage. See Clear Lake, Iowa, Code of

Ordinances § 106.11. The ordinances make it “unlawful for any person to

. . . [t]ake or collect any solid waste which has been placed out for

collection on any premises, unless such person is an authorized solid

waste collector.” Id. § 105.11(4). In moving his trash to the alley for

collection, Wright agreed only to convey his property to a licensed collector.

See People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (en banc) (stating

trash was not abandoned except “as to persons authorized to remove the

receptacle’s contents, such as trashmen”). Wright would have the right to

retrieve the property prior to collection and the right to exclude all others

from rummaging through his garbage bins prior to collection. See

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (Gorsuch, J., dissenting) (“I

31

doubt, too, that most people spotting a neighbor rummaging through their

garbage would think they lacked reasonable grounds to confront the

rummager.”). As one commentator explained:

[I]ndividuals who leave garbage on the curb generally do not

expect that anyone will be able to take the discarded items but

rather, per Greenwood, understand themselves as conveying

refuse to a specific party who will function as the next true

owner: the trash collector. This understanding seems

especially clear in localities with anti-rummaging ordinances,

under which all but designated trash collectors are prohibited

from tampering with curbside garbage, such that

unauthorized “finders” would presumably violate the

ordinance by taking possession of garbage. If individuals

placing garbage out for collection do not intend to leave the

items for random “finders,” placing garbage curbside arguably

lacks the requisite “intent to abandon” necessary to qualify as

property abandonment.

Russo, 105 Va. L. Rev. at 1247 (footnotes omitted). Until such time as the

garbage bags were collected by a licensed collector and commingled with

other garbage, Wright had not yet abandoned the property.

D.

We next address whether Heinz’s conduct constituted a trespass

thus making the warrantless search unconstitutional under article I,

section 8. At the time of the founding, trespass was a broad concept that

encompassed far more than physical intrusions into or on real or personal

property. “Trespass, in its largest and most extensive sense, signifie[d] any

transgression or offence against the law of nature, of society, or of the

country in which we live; whether it relate[d] to a man’s person, or his

property.” 3 William Blackstone, Commentaries on the Laws of England

208 (1768). Within the meaning of article I, section 8, an officer acts

unreasonably when, without a warrant, the officer physically trespasses

on protected property or uses means or methods of general criminal

investigation that are unlawful, tortious, or otherwise prohibited. See

32

Baude & Stern, 129 Harv. L. Rev. at 1825–26 (“[A] court should ask

whether government officials have engaged in an investigative act that

would be unlawful for a similarly situated private actor to perform. That

is, stripped of official authority, has the government actor done something

that would be tortious, criminal, or otherwise a violation of some legal

duty? Fourth Amendment protection, in other words, is warranted when

government officials either violate generally applicable law or avail

themselves of a governmental exemption from it.”). Otherwise prohibited

conduct includes means and methods of general criminal investigation

that violate a citizen’s reasonable expectation of privacy as articulated in

our cases adopting the Katz standard.

In determining whether an officer’s conduct is unlawful, tortious, or

otherwise prohibited, we do not rely on our personal biases, predilections,

or normative judgments concerning the proper scope of law enforcement

authority. Instead, we try “to discern and describe existing societal

norms.” Carpenter, 585 U.S. at ___, 138 S. Ct. at 2265. One way to

discern existing societal norms is to look to “democratically legitimate

sources of [positive] law”—statutes, rules, regulations, orders, ordinances,

judicial decisions, etc. Id. at ___, 138 S. Ct. at 2268 (quoting Todd E.

Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123, 127

(2011)); see also Planned Parenthood of the Heartland, 915 N.W.2d at 248

(“Statutes do not serve as constitutional definitions but provide us the

most reliable indicator of community standards to gauge the evolving views

of society important to our analysis.” (quoting Griffin v. Pate, 884 N.W.2d

182, 198 (Iowa 2016))).

1.

We turn to the question of whether Heinz physically trespassed on

Wright’s papers and effects. “[A]lmost every human activity ultimately

33

manifests itself in waste products . . . .” Smith v. State, 510 P.2d 793, 798

(Alaska 1973). Urbanization and advances in public sanitation practice

necessitate regular, coordinated, and public trash collection and disposal.

Many municipalities in Iowa have ordinances regulating the collection and

disposal of trash. Clear Lake is one such municipality. The city limits

who may access and collect solid waste to licensed and contracted

collectors. See Clear Lake, Iowa, Code of Ordinances § 106.11. The city

makes it “unlawful for any person to . . . [t]ake or collect any solid waste

which has been placed out for collection on any premises, unless such

person is an authorized solid waste collector.” Id. § 105.11(4). Violation

of any ordinance is punishable by a fine. See id. § 1.15.

Clear Lake is not the only municipality that prohibits any person,

other than an authorized collector, from taking or collecting trash placed

out for collection. See Ankeny, Iowa, Code of Ordinances § 110.11(3)

(2008); Clinton, Iowa, Code of Ordinances § 50.11(D) (2009); Coralville,

Iowa, Code of Ordinances § 105.11(4) (2011); Earlham, Iowa, Code of

Ordinances § 105.10(4) (2017); Manchester, Iowa, Code of Ordinances

§ 105.10(4) (2017); Nevada, Iowa, Code of Ordinances § 105.10(4) (2006);

North Liberty, Iowa, Code of Ordinances § 105.11(4) (2018); Pella, Iowa,

Code of Ordinances § 105.12(4) (2011); Pleasant Hill, Iowa, Code of

Ordinances § 105.12(3) (1998); Prairie City, Iowa, Code of Ordinances

§ 105.11(4) (2012); Sergeant Bluff, Iowa, Code of Ordinances § 105.11(4)

(2011); Urbandale, Iowa, Code of Ordinances § 57.11(D) (2015); Walcott,

Iowa, Code of Ordinances § 105.11(4) (2012).

As the Clear Lake and other ordinances demonstrate, Heinz engaged

in means and methods of general criminal investigation with respect to

these papers and effects that were unlawful and prohibited. See McClurg,

123 Iowa at 371–72, 98 N.W. at 882 (“The mere fact that a man is an

34

officer, whether of high or low degree, gives him no more right than is

possessed by the ordinary private citizen to . . . search for the evidences of

crime, without a legal warrant procured for that purpose.”); see also

Caniglia v. Strom, 593 U.S. ___, ___, 141 S. Ct. 1596, 1599 (2021) (“And,

of course, officers may generally take actions that ‘any private citizen might

do’ without fear of liability.” (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at

1416)). Heinz’s warrantless seizures and searches were thus an unlawful

and unconstitutional physical trespass on Wright’s papers and effects.

See Jardines, 569 U.S. at 8, 133 S. Ct. at 1416; Davis v. Passman, 442

U.S. 228, 246, 99 S. Ct. 2264, 2277–78 (1979) (“No man in this country is

so high that he is above the law. No officer of the law may set that law at

defiance with impunity. All officers of the government, from the highest to

the lowest, are creatures of the law, and are bound to obey it.” (quoting

Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2910 (1978))); Baude

& Stern, 129 Harv. L. Rev. at 1882 (stating where municipal ordinances

require trash collection by a licensed collector and prohibit unauthorized

persons from tampering with trash, the ordinances “should bring with

them the protection of the Fourth Amendment”).

Of course, this is not to say article I, section 8 rises and falls based

on a particular municipal law. Municipal laws, like all positive laws, are

merely one form of evidence of the limits of a peace officer’s authority to

act without a warrant. Further, “while positive law may help establish a

person’s Fourth Amendment interest there may be some circumstances

where positive law cannot be used to defeat it.” Carpenter, 585 U.S. at ___,

138 S. Ct. at 2270. For example, neither the legislature nor a municipality

could “pass laws declaring your house or papers to be your property except

to the extent the police wish to search them without cause.” Id. at 2270–

71. Article I, section 8 precludes a peace officer from engaging in general

35

criminal investigation that constitutes a trespass against a citizen’s house,

papers, or effects. No department of the government can circumvent this

constitutional minimum.

2.

Although we have already concluded the seizures and searches at

issue were unconstitutional physical trespasses on Wright’s papers and

effects, we address whether Heinz’s conduct violated article I, section 8

because it violated a reasonable expectation of privacy. On this point, we

do not write on a blank slate.

The Supreme Court applied the expectation-of-privacy test to

address the constitutionality of the searches and seizures of garbage bags

in California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988). There,

the Supreme Court held the Fourth Amendment does not “prohibit[] the

warrantless search and seizure of garbage left for collection outside the

curtilage of a home.” Id. at 37, 108 S. Ct. at 1627. The Court explained

that “[a]n expectation of privacy does not give rise to Fourth Amendment

protection . . . unless society is prepared to accept that expectation as

objectively reasonable.” Id. at 39–40, 108 S. Ct. at 1628. The Court

reasoned an expectation of privacy in garbage bags left outside the

curtilage of a home was not objectively reasonable: “It is common

knowledge that plastic garbage bags left on or at the side of a public street

are readily accessible to animals, children, scavengers, snoops, and other

members of the public.” Id. at 40, 108 S. Ct. at 1628–29 (footnotes

omitted). In addition, “respondents placed their refuse at the curb for the

express purpose of conveying it to a third party, the trash collector, who

might himself have sorted through respondents’ trash or permitted others,

such as the police, to do so.” Id. at 40, 108 S. Ct. at 1629.

36

In State v. Henderson, the Iowa Court of Appeals concluded the

warrantless search and seizure of the garbage left outside the defendant’s

home under markedly similar facts as Greenwood did not violate the Fourth

Amendment or article I, section 8. See 435 N.W.2d 394, 395–97 (Iowa Ct.

App. 1988); see also State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App.

2001) (declining to depart from the holdings in Greenwood and Henderson

under article I, section 8 of the Iowa Constitution). The court of appeals

relied on the Supreme Court’s rationale in Greenwood and “determine[d]

the use of evidence obtained by searching the defendant’s garbage did not

intrude upon his legitimate expectation of privacy and therefore, was

properly considered by the magistrate in issuing a search warrant of the

defendant’s premises.” Henderson, 435 N.W.2d at 397.

More recently, Justice Gorsuch called the application of Katz in

Greenwood “unbelievable,” explaining:

In that case, the Court said that the homeowners forfeited

their privacy interests because “[i]t is common knowledge that

plastic garbage bags left on or at the side of a public street are

readily accessible to animals, children, scavengers, snoops,

and other members of the public.” But the habits of raccoons

don’t prove much about the habits of the country. I doubt,

too, that most people spotting a neighbor rummaging through

their garbage would think they lacked reasonable grounds to

confront the rummager. Making the decision all the stranger,

California state law expressly protected a homeowner’s

property rights in discarded trash. Yet rather than defer to

that as evidence of the people’s habits and reasonable

expectations of privacy, the Court substituted its own curious

judgment.

Carpenter, 585 U.S. at ___, 138 S. Ct. at 2266 (alteration in original)

(citations omitted) (quoting Greenwood, 486 U.S. at 40, 108 S. Ct. at 1628–

29).

We believe Justice Gorsuch has the better of the argument here.

Garbage contains intimate and private details of life. See Greenwood, 486

37

U.S. at 50, 108 S. Ct. at 1634 (Brennan, J., dissenting). When a citizen

places garbage out for collection in a closed garbage bag, the contents of

the bag are private, as a factual matter. The citizen understands, however,

that the contents of the bag may be revealed to someone at some point in

time. That a citizen may actually lose privacy in certain things or in certain

information at some point in the future does not preclude the possibility

that a peace officer nonetheless violated the citizen’s right to privacy in

accessing the same things or information. “Privacy rights do not protect a

reasonable expectation that privacy will be maintained, but rather a

reasonable expectation that privacy will not be lost in certain ways.”

Jeffrey M. Skopek, Untangling Privacy: Losses Versus Violations, 105 Iowa

L. Rev. 2169, 2174 (2020). As one noted scholar explained:

Selective secrecy and partial confidentiality are wholly

conceivable and not, despite the superficial allure of the

argument to the contrary, internally inconsistent. Not to allow

an individual to sacrifice a portion of her secrecy interest, or

to suspend confidentiality vis-a-vis specific individuals and

not others, without surrendering all claims to fourth

amendment privacy, makes little sense.

James J. Tomkovicz, Beyond Secrecy for Secrecy’s Sake: Toward an

Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings

L.J. 645, 681 (1985).

Here, Wright had an expectation based on positive law that his

privacy, as a factual matter, would be lost, if at all, only in a certain, limited

way. Specifically, Wright had an expectation based on positive law that

his garbage bags would be accessed only by a licensed collector under

contract with the city. See Clear Lake, Iowa, Code of Ordinances § 106.11.

Wright had an expectation based on positive law that it would be unlawful

for others to access his trash. See id. § 105.11(4); see also Rakas v. Illinois,

439 U.S. 128, 143 n.12, 99 S. Ct. 421, 430 n.12 (1978) (“Legitimation of

38

expectations of privacy by law must have a source outside of the Fourth

Amendment, either by reference to concepts of real or personal property

law or to understandings that are recognized and permitted by society.”).

“[T]he mere fact that a citizen elects to dispose of his garbage in the

customary way by making it available for pickup by a municipal or

privately-retained hauler is no basis for concluding that his expectation of

privacy as to that garbage is unjustified.” 1 LaFave § 2.6(c), at 933. Heinz

violated that expectation and right when he accessed the contents without

a warrant.

We thus join those courts that have held a warrantless search of a

citizen’s trash left out for collection is unlawful. See Edwards, 458 P.2d

at 718 (pre-Greenwood decision holding that police search of trash cans

in the back of defendant’s residence was unlawful because defendant had

a justified expectation of privacy in his garbage); State v. Goss, 834 A.2d

316, 319 (N.H. 2003) (rejecting Greenwood under New Hampshire

Constitution, concluding that defendant’s expectation of privacy was

reasonable, and construing state constitution to provide greater protection

than the Federal Constitution); State v. Hempele, 576 A.2d 793, 813–15

(N.J. 1990) (rejecting Greenwood under New Jersey state constitutional

law and holding that “the State must secure a warrant based on probable

cause in order to search garbage bags left on the curb for collection”); State

v. Crane, 254 P.3d 117, 123 (N.M. Ct. App. 2011) (finding defendant had

reasonable expectation of privacy in garbage under New Mexico

Constitution), aff’d on other grounds, 329 P.3d 689 (N.M. 2014); State v.

Morris, 680 A.2d 90, 96 (Vt. 1996) (rejecting Greenwood under Vermont

Constitution, finding that “[t]he Vermont Constitution does not require the

residents of this state to employ extraordinary or unlawful means to keep

government authorities from examining discarded private effects”); State

39

v. Boland, 800 P.2d 1112, 1116–17 (Wash. 1990) (en banc) (rejecting

Greenwood under Washington Constitution and focusing its analysis on

whether the private affairs of an individual were unreasonably violated).

E.

The State contends Heinz’s conduct here was justified for practical

reasons. The State contends that holding Heinz’s conduct violated the

constitution “would result in the demise of trash grabs of personal trash

containers.” We do not question the utility of warrantless trash grabs for

the purposes of law enforcement, but the utility of warrantless activity is

not the issue under our constitution. The “mere fact that law enforcement

may be made more efficient can never by itself justify disregard of the

[constitution].” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414

(1978). Obviously, “investigation of crime would always be simplified if

warrants were unnecessary.” Id.

[T]he Constitution [is not] a public enemy whom judges are

charged to disarm whenever possible. It is the protector of the

people, placed on guard by them to save the rights of the

people against injury . . . . To hold that attack upon it is for

the public good is to commend the soldier for tearing down the

rampart which enables him to sleep in safety.

Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 272, 154 N.W. 1037, 1047

(1915).

V.

We hold Officer Heinz conducted an unreasonable search and

seizure in violation of article I, section 8 of the Iowa Constitution when he

acted without a search warrant and removed opaque trash bags from

waste bins set out for collection behind a residence, took possession of the

trash bags, transported them to a different location, opened the bags, and

searched through the contents. Accordingly, we conditionally affirm

Wright’s convictions and remand this matter for further proceedings. On

40

remand, the district court shall hold a hearing on the defendant’s motion

to suppress evidence without consideration of the evidence and

information obtained during the trash pulls used to support the warrant

application. See State v. Veal, 930 N.W.2d 319, 340 (Iowa 2019)

(conditionally affirming conviction and remanding for further proceedings

in light of decision); State v. Lilly, 930 N.W.2d 293, 309 (Iowa 2019) (same).

The district court shall conduct further proceedings as necessary

contingent upon its ruling on the defendant’s motion to suppress evidence.

AFFIRMED ON CONDITION AND REMANDED WITH

DIRECTIONS.

Oxley and McDermott, JJ., join this opinion, and Appel, J., joins as

to divisions I, IV(B)–(E), and V. Appel, J., files a special concurrence.

Christensen, C.J., files a dissenting opinion, in which Waterman and

Mansfield, JJ., join. Waterman, J., files a dissenting opinion, in which

Christensen, C.J., and Mansfield, J., join. Mansfield, J., files a dissenting

opinion, in which Christensen, C.J., and Waterman, J., join.

41

#19–0180, State v. Wright

APPEL, Justice (concurring specially).

In this case, I join divisions I, IV(B), IV(C), IV(D), IV(E), and V of the

court’s opinion. In particular, I agree with Justice McDonald’s general

assertions regarding the fundamental importance of search and seizure

law to our form of government. I also agree that we are not bound by the

recent rights-restricting precedents of the United States Supreme Court in

the area of search and seizure or other constitutional provisions. I further

agree with Justice McDonald that the reasonableness clause does not

encompass the radical pragmatism offered in the dissenting opinions.

And, I agree that a trespass occurred in this case, that the property was

not abandoned, and that, as a result, a warrant was required under

article I, section 8 of the Iowa Constitution. In the alternative, the actions

of the officers violated reasonable expectations of privacy, thereby

triggering the protections of article I, section 8 of the Iowa Constitution.

But I disagree with aspects of Justice McDonald’s opinion. Although

I have a healthy respect for constitutional history and have explored it in

some depth in the search and seizure context, see, e.g., State v. Ochoa,

792 N.W.2d 260, 264–87 (Iowa 2010), I am not what is generally loosely

referred to as an originalist. The law is never static. It always evolves.

And the founders certainly believed that to be the case.

And, in the context of search and seizure, Justice Brandeis got it

right in his ultimately adopted dissent in Olmstead v. United States, when

he urged the Court to view constitutional law as more than simple

historical application of common law traditions in light of modern

innovations like the telephone. 277 U.S. 438, 472–76, 48 S. Ct. 564, 570–

71 (1928) (Brandeis, J., dissenting). It makes no sense to try to figure out

what the founders would have thought about eavesdropping, a heat-

42

measuring device that penetrates the home, or a GPS device slapped onto

a vehicle. Instead, our task is to identify the larger constitutional

principles at stake, trace their evolution through decades of experience,

and apply them in the present context based on contemporary realities.

Finally, as I have stated many times, the best reading of the

relationship between the reasonability clause and the warrant clause in

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

Amendment to the United States Constitution is the warrant-preference

approach that appeared for decades in the United States Supreme Court

cases until abandoned by modern pragmatists. The touchstone of the

Fourth Amendment generally is not the reasonableness clause, but

instead, is the warrant clause. The general rule, absent certain narrow

and well-recognized exceptions, is that before law enforcement may engage

in search or seizure of a person, papers, or effects, a warrant must be

obtained describing with particularity the basis for probable cause, the

person or places to be searched, and the scope of the search.

Here are some details.

I. The Critical Role of Search and Seizure Law in Maintaining a

Democratic Government.

Although often forgotten or simply ignored, the controversy involving

search and seizure was at the heart of the American Revolution. The raw

power of the government to engage in general searches and seizures was

not a footnote to history but was a chapter title. Although modern radical

pragmatists have forgotten it, the use of writs of assistance and general

warrants were absolute anathema to the Revolutionary generation.

General searches were recognized as opening the door to abuses, and

abuses there were.

43

Of course, arbitrary search and seizure dragged innocent people

through the wringer. But there was also larger harm that arose from the

general authority to search and seize. General authority to search not only

has the potential to harass the population generally, but it permits the

government to act in an unequal and arbitrary manner against groups or

types of persons. General authority to search and seize permits

government authorities to focus the powerful machinery of law

enforcement on political opponents, as in Wilkes v. Wood (1763) 98 Eng.

Rep. 489, or upon some other element of the population that is disfavored

or deemed suspicious. The need to cabin such arbitrary action gave rise

to the warrant requirement in which the government is required to show

probable cause and as history developed, obtain a warrant from a neutral

magistrate.

More recently, the events of the 1930s in central Europe reinforced

for all the importance of limitations on the government’s search and

seizure powers. These events had a particular impact on Justice Robert

Jackson, who served as chief prosecutor at Nuremberg, and Justice Felix

Frankfurter, born in Austria and of Jewish lineage. They recognized that

a government that is free to conduct searches and seizures at any time of

day or night for any reason, including political beliefs or ethnic

characteristics, is an authoritarian government.

There is an ample supply of court opinions emphasizing the role of

search and seizure limitations. Justice McDonald cites some of them.

There are many others. Early on, we recognized that the search and

seizure limitations of the Iowa Constitution were to be approached “in a

broad and liberal spirit.” State v. Height, 117 Iowa 650, 657, 91 N.W. 935,

937 (1902). In its first major Fourth Amendment case, the United States

Supreme Court urged “constitutional provisions for the security of person

44

and property should be liberally construed,” cautioned that

unconstitutional practices arise from “slight deviations from legal modes

of procedure,” and observed that “[i]t is the duty of courts to be watchful

for the constitutional rights of the citizen, and against any stealthy

encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635, 6

S. Ct. 524, 535 (1886). And traditional search and seizure cases

emphasize that concerns about efficiency cannot defeat search and seizure

protections. Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414

(1978) (“[T]he mere fact that law enforcement may be made more efficient

can never by itself justify disregard of [constitutional search and seizure

requirements].”).

But what is striking is not the cornucopia of powerful expressions

of the role of search and seizure limitations, but their absence in the

dissenting opinions, and unfortunately, in many of the recent rights-

restricting search and seizure decisions of the United States Supreme

Court and this court. The term Justice Stevens used for this phenomenon

is “constitutional amnesia.” United States v. Leon, 468 U.S. 897, 972, 104

S. Ct. 3430, 3452 (1984) (Stevens, J., dissenting). But without a general

understanding of the purpose of a constitutional provision and its

historical roots, a judicial opinion becomes a color matching race to the

finish without context and substance.

II. Authority to Depart from Federal Precedent.6

Although in the early years the federal government was regarded as

something of an irrelevant backwater compared to sophisticated and

experienced state governments, in recent years, there seems to be a

6For more expansive views on the subject see State v. Short, 851 N.W.2d 474, 481–

95 (Iowa 2014); State v. Baldon, 829 N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially

concurring); and Ochoa, 792 N.W.2d at 264–67.

45

fascination, in some quarters, of all things federal. Fascination with

federal court constitutional limitations. Fascination with federal rules.

Fascination with the federal doctrine on just about anything, regardless of

context. Law students flock to the federal courts class and avoid the

course on state and local government.

This fascination with all things federal by state courts would have

certainly left the founding generation speechless, if not breathless. The

very purpose of the federal system was to preserve the autonomy of the

states, with the federal government playing a limited role in national

political life. Not only was uniformity between state and federal

government not desired, the structure of the government was intentionally

designed to prevent it by giving states wide autonomy over most aspects

of public life. The proposition that state supreme courts should generally

follow precedent of the United States Supreme Court would not have

commanded support at the United States Constitutional Convention7 and

was clearly condemned by the Iowa constitutional generation’s reaction to

federal caselaw regarding slavery at the Iowa Constitutional Convention of

1857 and in the general assembly’s response to the Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857), decision issued shortly after the convention

adjourned.8

7United States Constitutional Convention delegate “Oliver Ellsworth, who would

one day become Chief Justice of the United States Supreme Court, declared that ‘he

turned his eyes’ to the state governments ‘for the preservation of his rights.’ ” Paul

Finkelman & Stephen E. Gottlieb, Introduction to Toward a Usable Past: Liberty Under

State Constitutions 1, 4 (Paul Finkelman & Stephen E. Gottlieb eds., 1991).

8At the Iowa Constitutional Convention of 1857 it was widely recognized that

provisions of the Iowa Constitution conflicted with decisions of federal courts. That did

not bother the members of the convention. Regarding the possibility of conflict between

the right to counsel provision and judicial holdings under the Federal Fugitive Slave Act,

James F. Wilson noted, “Gentlemen may say that it will bring about a conflict between

the courts of the United States and the courts of this State. Let that conflict come . . . .”

2 The Debates of the Constitutional Convention of the State of Iowa 739 (W. Blair Lord rep.,

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

46

There is only one reason to follow federal precedent on a matter of

state law, namely, when it is persuasive on the merits, period. Ochoa, 792

N.W.2d at 267. We look to the quality of the reasoning, not the pedigree

of the court, in considering the impact of caselaw from other jurisdictions.

Id.

Some may view it desirable to tip the scales of Iowa caselaw in the

direction of the recent rights-restricting cases of the United States

Supreme Court. Upon this view, the dramatic recent rights-restricting

trends in the federal caselaw may be imported into Iowa law. By giving a

preference or presumption to federal law generally, one can dramatically

move state law in an across-the-board, rights-restricting direction. A

federal rights-restricting thumb is placed on the scale of all state

constitutional cases. As noted by Professor Adrian Vermeule, such an

approach amounts to “a ‘precommitment device’ that prevents a state

supreme court from considering each case based on an independent

examination of facts and law.” State v. Short, 851 N.W.2d 474, 487 (Iowa

2014) (quoting Adrian Vermeule, The Judicial Power in the State (and

Federal) Courts, 2000 Sup. Ct. Rev. 357, 366).

But we have a constitutional responsibility to think for ourselves.

Our famous civil rights cases were not clones of federal court precedent.

Similarly, George Ells, a leading figure at the convention, told delegates, “I regard the

Fugitive Slave Law as unconstitutional, because it does not give to man the right to defend

his life and liberty by ‘due process of law.’ ” 1 id. at 101. He later told the convention, “If

the words ‘due process of law,’ shall in time be recognized by our judicial tribunals to

mean what they really do mean, . . . [t]hen, sir, that infamous Fugitive Slave Law will

become a nullity, and the American people will trample its odious enactments in the

dust.” Id. at 102. These views, of course, were completely contrary to the pro-slavery-

dominated United States Supreme Court. Compare id. at 101–02, and 2 id. at 739, with

Dred Scott, 60 U.S. (19 How.) at 404, 452–53, superseded by constitutional amendment,

U.S. Const. Amend. XIII. The Iowa General Assembly wasted no time responding to Dred

Scott, declaring that it was obligated to “promptly and sternly denounce this new doctrine,

which if established, degrades the free States.” 1858 Iowa Acts Res. 12, at 433.

47

When the United States Supreme Court decided Plessy v. Ferguson, 163

U.S. 537, 16 S. Ct. 1138 (1896), we did not scamper back from our rights-

affirming rulings in Clark v. Board of Directors, 24 Iowa 266 (1868), and

Coger v. Northwestern Union Packet Co., 37 Iowa 145 (1873), as a chastised

inferior tribunal. This court has not been, and should not aspire to be,

the United States Court of Appeals for the Twelfth Circuit.

The second reason for cutting and pasting federal precedent into

state caselaw, rarely articulated but often at work, is efficiency. State

courts are, of course, overburdened, and the resources available to the

average state court judge, in Iowa and in many states, pales in comparison

to the federal judiciary. The parties’ briefings on state constitutional

issues are often less than thorough. It is easy to simply grab a flying

federal case asteroid, drop the smoldering object into our opinion book,

close it quickly to cut off any legal oxygen that might cause a flare-up, and

go home for supper. But the Iowa courts are an independent state

judiciary operating under an independent state constitution.

From an analytical perspective, these issues are well settled. There

is a large scholarship supporting these views which we have canvassed in

some detail. See Short, 851 N.W.2d at 481–95; State v. Baldon, 829

N.W.2d 785, 803–34 (Iowa 2013) (Appel, J., specially concurring); Ochoa,

792 N.W.2d at 264–67. Writing in 1998, a leading authority declared that

“the legitimacy of rel[ying] on state constitutional guarantees . . . has

largely been put to rest.” G. Alan Tarr, Understanding State Constitutions

169 (1998). A recent book by Judge Jeff Sutton demolished the argument

that state courts should simply follow federal law. Jeffrey S. Sutton, 51

Imperfect Solutions: States and the Making of American Constitutional Law

(2018). Yet, at least some of our recent cases in my view tend to follow

federal caselaw uncritically as if it were some kind of special authority.

48

See, e.g., State v. McGee, 959 N.W.2d 432, 445 (Iowa 2021); State v.

Warren, 955 N.W.2d 848, 859 (Iowa 2021); State v. Brown, 930 N.W.2d

840, 846–47 (Iowa 2019). “Old habits die hard.” A.E. Dick Howard,

Introduction to Developments in State Constitutional Law XI, XXII (Bradley

D. McGraw ed., 1985).

III. Departure from Federal Precedent.

Having demonstrated our independent authority, I now briefly

review what I regard as the unsatisfactory approach to search and seizure

matters by the United States Supreme Court. In my view, more than a few

of them are off the mark. Until very recently, the Supreme Court has

tended to embrace rights-restricting radical pragmatism, where the

perceived needs of law enforcement are consistently permitted to

overwhelm the libertarian principles behind search and seizure law. I offer

a nonexclusive parade of examples to illustrate my point.

In United States v. Leon, the Supreme Court discovered a “good-

faith” exception to the exclusionary rule for search and seizure cases. 468

U.S. at 920–21, 104 S. Ct. at 3419 (majority opinion). The decision

promised to undermine enforcement of search and seizure protections in

federal courts. In State v. Cline, we rejected the good-faith exception as

developed in Leon. 617 N.W.2d 277, 288–93 (Iowa 2000) (en banc). We

found that in Iowa the exclusionary rule was not only designed to deter

police misconduct but also to provide a remedy for constitutional

violations and to ensure the integrity of our state courts by refusing to

admit into the record illegally obtained evidence. Id. at 289–90. A majority

of state courts that have considered Leon have also rejected it,9 leading

9See Short, 851 N.W.2d at 503 (citing cases).

49

commentators to speculate that perhaps the United States Supreme Court

would overrule Leon.

In Samson v. California, the United States Supreme Court departed

from its prior precedent by creating a categorical exception that permitted

warrantless searches of parolees. 547 U.S. 843, 850–57, 126 S. Ct. 2193,

2198–2202 (2006). The new Fourth Amendment doctrine dramatically

and substantially undercut the traditional warrant requirement, probable

cause, and particularity requirements of search and seizure law. See

Short, 851 N.W.2d at 500. This departure from past precedent was

contrary to State v. Cullison, where we held that a parolee did not

surrender search and seizure protections. 173 N.W.2d 533, 537, 539–40

(Iowa 1970). In Cullison, we rejected pragmatic arguments to undermine

traditional search and seizure law as “socio-juristic rationalization.” Id. at

536. A leading Fourth Amendment scholar, Wayne LaFave, found Samson

unpersuasive, noting its use of a general reasonability analysis “especially

troublesome.” See 5 Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 10.10, at 541 (6th ed. 2020). We agreed, stating

that “[w]e bristle at the replacement of a regime of individualized suspicion

with broad categorical judgments when general law enforcement searches

of the home are involved.” Ochoa, 792 N.W.2d at 289.

In Schneckloth v. Bustamonte, the United States Supreme Court

developed a multifactor test to determine whether a person consents to a

search. 412 U.S. 218, 227, 93 S. Ct. 2041, 2048 (1973). Schneckloth does

not require the state to show a knowing and voluntary waiver of search

and seizure rights under Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.

1019, 1023 (1938), but instead permits consideration of factors not related

to the consent issue at all, which does not make any sense except to permit

searches or seizures that are not knowing and voluntary and not

50

supported by a warrant. And, how do you meaningfully consent to waiving

a right that you are not aware you have? In Schneckloth, the naked

assertion was made that providing explicit warnings would be “thoroughly

impractical.” 412 U.S. at 231, 93 S. Ct. at 2050. Subsequent practice,

however, shows that not to be the case at all. See Matthew Phillips, Note,

Effective Warnings Before Consent Searches: Practical, Necessary, and

Desirable, 45 Am. Crim. L. Rev. 1185, 1197–1206 (2008) (citing New Jersey

requirement of giving warnings in any routine traffic stop prior to seeking

consent to search). Although we have not explicitly required that a police

officer inform a person of his or her right to decline to provide consent, we

have stated that the failure to make such a disclosure is an important fact

in the “consent” analysis. State v. Pals, 805 N.W.2d 767, 783 (2011).

The result in Atwater v. City of Lago Vista is something of a shocker.

532 U.S. 318, 354–55, 121 S. Ct. 1536, 1557–58 (2001). There, a mother

driving with her two young children was arrested and jailed after a traffic

offense where no jail time could be imposed. Id. at 323–24, 121 S. Ct. at

1541–42. How can that be? Justice O’Connor’s dissent in Atwater has

been widely praised and should be read and reread by those seriously

concerned about search and seizure law. Id. at 361, 121 S. Ct. at 1536

(O’Connor, J., dissenting). See generally Wayne A. Logan, Reasonableness

as a Rule: A Paean to Justice O’Connor’s Dissent in Atwater v. City of Lago

Vista, 79 Miss. L.J. 115 (2009) (praising Justice O’Connor’s dissent “for its

steadfast fidelity to Fourth Amendment reasonableness and its astute

recognition of the personal and jurisprudential consequences of its

abandonment”).

The notion that search and seizure protections do not extend to

financial records in the hands of third parties, as declared in United States

v. Miller, 425 U.S. 435, 440–44, 96 S. Ct. 1619, 1622–24 (1976), strikes

51

me as doubtful in the modern context. John Adams kept his financial

records in a roll-top desk on his farm and therefore the records were

protected from unwarranted search. But in modern life, John Adams

would have the very same information in records in a financial institution.

Shouldn’t the identical information stored according to modern practices

be entitled to the same protection? Fortunately, it seems that the United

States Supreme Court is beginning to backtrack on the third-party

doctrine. See Carpenter v. United States, 585 U.S. ___, ___, 138 S. Ct.

2206, 2216–20 (2018). As noted by Justice Sotomayor in United States v.

Jones, it may be time to reconsider Miller. 565 U.S. 400, 417, 132 S. Ct.

945, 957 (2012) (Sotomayor, J., concurring) (noting that the Miller

“approach is ill suited to the digital age, in which people reveal a great deal

of information about themselves to third parties in the course of carrying

out mundane tasks”).

In Whren v. United States, the United States Supreme Court

expressly permitted law enforcement officers to engage in pretextual traffic

stops. 517 U.S. 806, 811–13, 116 S. Ct. 1769, 1773–74 (1996). Whren

failed to recognize, among other things, that discriminatory application of

search and seizure powers of the state was one of the fundamental

purposes of the Fourth Amendment. For me, this was an unwelcome

development of federal search and seizure law that leaked into Iowa law

under the Iowa Constitution. See Brown, 930 N.W.2d at 873–76 (Appel,

J., dissenting).

In New York v. Belton, the United States Supreme Court held that

law enforcement as part of a search incident to arrest could look inside

closed containers as part of a vehicle search. 453 U.S. 454, 459–61, 101

S. Ct. 2860, 2864 (1981). This was so even though the person arrested

did not have access to the container and thus there was no risk of

52

destruction of evidence nor any question of safety of the officers. Id. at

456, 101 S. Ct. at 2862. Many state courts howled. So did we. State v.

Gaskins, 866 N.W.2d 1, 9–13 (Iowa 2015); State v. Vance, 790 N.W.2d 775,

786–90 (Iowa 2010). Justice Scalia noted that the Supreme Court caselaw

assumed that the arrested person had “the skill of Houdini and the

strength of Hercules.” Thornton v. United States, 541 U.S. 615, 626, 124

S. Ct. 2127, 2134 (2004) (Scalia, J., concurring in the judgment) (quoting

United States v. Frick, 490 F.2d 666, 673 (5th Cir. 1973) (Goldberg, J.,

concurring in part and dissenting in part)). Citing state court decisions

refusing to follow Belton, the United States Supreme Court backtracked,

to a large extent, in Arizona v. Gant. 556 U.S. 332, 343, 129 S. Ct. 1710,

1719 (2009). The retreat was certainly stimulated by the growing body of

negative state court response to Belton.

In a line of three cases, the United States Supreme Court reversed

state supreme court decisions extending traditional search and seizure

protections to inventory searches of automobiles, see Colorado v. Bertine,

479 U.S. 367, 376, 107 S. Ct. 738, 743 (1987); Illinois v. Lafayette, 462

U.S. 640, 648–49, 103 S. Ct. 2605, 2611 (1983); South Dakota v.

Opperman, 428 U.S. 364, 376, 96 S. Ct. 3092, 3100 (1976). In considering

the approach of the United States Supreme Court on inventory searches,

we noted the cumulative impact of its decisions in Whren, Atwater, and

Bertine was to provide law enforcement with “virtually unlimited discretion

to stop arbitrarily whomever they choose, arrest the driver for a minor

offense that might not even be subject to jail penalties, and then obtain a

broad inventory search of the vehicle—all without a warrant.” State v.

Ingram, 914 N.W.2d 794, 814 (Iowa 2018). We noted that “[a]n essentially

unregulated legal framework allowing wide police discretion in stopping,

arresting, and conducting warrantless inventory searches of the driver’s

53

automobile amounts to a general warrant regime that is anathema to

search and seizure law.” Id. at 815.

Finally, there is the evisceration of the warrant requirement in

Mitchell v. Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2535–39 (2019).

Under Mitchell, administrative efficiency now is the driving force behind

the determination of whether the warrant requirement applies. See id.

And, as in Samson, the Supreme Court utilized an overbroad categorical

approach to remove cases from the warrant requirement even though it

was not impractical to obtain a warrant. See McGee, 959 N.W.2d at 449–

79 (Appel, J., dissenting).

In sum, as the above cases illustrate, the recent rights-restrictive

cases of the United States Supreme Court have seriously undermined the

traditional protections of search and seizure. If we are to give article I,

section 8 of the Iowa Constitution the “broad and liberal” construction

commanded by our precedent, State v. Height, 117 Iowa at 657, 91 N.W.

at 937, many of the United States Supreme Court cases simply cannot be

relied upon as a sound basis for Iowa constitutional law. There is,

perhaps, some reason to believe that the warrant requirement may be

making a comeback in the United States Supreme Court, at least in some

contexts. See Carpenter, 585 U.S. at ___, 138 S. Ct. at 2216–20. We need

not await these perhaps mercurial strands in a couple of United States

Supreme Court cases, however, but should simply stay the course with

the development of our robust and independent state search and seizure

law.

IV. Benefits of History, but Shortcomings of Originalism.

I also wish to briefly comment on methodology. Historical

understanding of the development of search and seizure law helps inform

our analysis of current problems. In several cases, we canvassed at length

54

the historic origins of search and seizure law. See Baldon, 829 N.W.2d at

803–34; Ochoa, 792 N.W.2d at 269–73.

But while historical inquiry can inform us about the general purpose

of a constitutional provision or about the historic concerns that gave rise

to open-ended constitutional language, it does not provide us, standing

alone, with inevitable answers. History is not granular, and it rarely points

only in one direction. Even if historical truths can be discovered by judges

writing opinions in a matter of weeks (and, alas, sometimes days), the

historical truths are very difficult even for trained historians to discover

and are often inconsistent and contradictory. And, historical cherry-

picking can be a tool to hide preferences and biases behind a veneer of

objectivity. At most, and when best used, history informs and shapes the

inquiry but does not demand results in cases presenting fact situations or

modern technology that the founders could not possibly have anticipated.

In addition to history, consideration must be given to the evolving

precedent interpreting open-ended constitutional provisions and to

contemporary contexts and public attitudes.

We also should avoid search and seizure formalism. While a

trespass may give rise to search and seizure protections, nontrespassory

acts that uncover intimate information may be equally protected from

arbitrary search and seizure. Jones, 565 U.S. at 414, 132 S. Ct. at 954–

55. In other words, the government’s physical intrusion may be important

in some cases, but there are many kinds of surveillance and intrusions

that do not involve trespass that are entitled to protection against

warrantless government invasion. Id. Even without a trespass,

“unrestrained power to assemble data that reveal private aspects of

identity is susceptible to abuse . . . [and] may ‘alter the relationship

between citizen and government in a way that is inimical to democratic

55

society.’ ” Id. at 416, 132 S. Ct. at 956 (quoting United States v. Cuevas-

Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).

Particularly in the area of search and seizure, there have been

technological developments that simply could not have been anticipated

by the founders. History may not be determinative in these contexts, nor

can the formalism of property law, in and of itself, be sufficient. That point

was made by Justice Brandeis in his dissent in Olmstead, 277 U.S. 438,

48 S. Ct. 564, and later embraced by the United States Supreme Court in

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). But even so, it

is clear that the property rights theory which relies, to some extent, on

historical patterns was not entirely abandoned by Katz; but instead, Katz’s

“reasonable expectation of privacy” was grafted onto existing doctrine to

ensure robust search and seizure protections. The Katz “reasonable

expectation of privacy” doctrine, however, seemed to engulf prior concepts

limiting the government’s authority to search and seize. Further, although

Katz was seen at the beginning as a tool to expand search and seizure

protections, narrow interpretations of the pliable term “reasonable” often

produced contrary results. In any event, I regard the protections afforded

by search and seizure law to be expansive and broad enough to include

evolving concepts of property, privacy, and security. See Ochoa, 792

N.W.2d at 276–78 (discussing interest of security as well as property and

privacy in search and seizure law).

V. Constitutionality of Trash Pulls in This Case.

I have little trouble concurring with the result in this case. For the

reasons explained by Justice McDonald, the trash pull was clearly a

search. There are two reasons for this. First, as Justice McDonald

explains, the search was accomplished by trespass. In my view, a trespass

may not be required to offend search and seizure principles, but where a

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trespass does occur, the government must either get a warrant or be able

to meet its burden of showing an exception to the warrant requirement.

Second, as Justice McDonald also notes, applying the formulation in Katz,

Wright had a legitimate expectation of privacy in his trash. This is a belt-

and-suspenders case.

At this point, then, the warrant requirement becomes applicable

unless there is an exception to it. See, e.g., Ingram, 914 N.W.2d at 816

(“Our recent cases repeatedly embrace what can only be characterized as

a strong warrant preference interpretation of article I, section 8.”); State v.

Coleman, 890 N.W.2d 284, 286 (Iowa 2017) (articulating warrant

preference); Gaskins, 866 N.W.2d at 7 (“ ‘A warrantless search is presumed

unreasonable’ unless an exception applies.” (quoting State v. Moriarty, 566

N.W.2d 866, 868 (Iowa 1997))); Baldon, 829 N.W.2d at 791 (majority

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

unreasonable’ . . . .” (quoting Schneckloth, 412 U.S. at 219, 93 S. Ct. at

2043)); Ochoa, 792 N.W.2d at 269 (“[T]he Reasonableness Clause cannot

be used to override the Warrant Clause.”); State v. Strong, 493 N.W.2d 834,

836 (Iowa 1992) (“Warrantless searches and seizures are by definition

invalid unless they fall under one of the jealously and carefully drawn

exceptions to constitutional warrant requirements.”); State v. Sanders, 312

N.W.2d 534, 538 (Iowa 1981) (“Ordinarily a search and a resulting seizure

of private property ‘must be both reasonable and performed pursuant to a

properly executed warrant.’ ” (quoting State v. Holderness, 301 N.W.2d

733, 736 (Iowa 1981))). No one suggests that such an exception is present

in this case. As a result, I join the court in concluding that the

unwarranted search is unlawful under article I, section 8 of the Iowa

Constitution and the evidence obtained from the search must be

suppressed.

57

#19/0180, State v. Wright

CHRISTENSEN, Chief Justice (dissenting).

I respectfully dissent and join the separate dissents of Justice

Waterman and Justice Mansfield. I would affirm the district court

judgment. The majority buries the lede in waiting until the last portion of

its opinion to announce the most consequential portion of its ruling, which

is that police are apparently now prohibited from utilizing any “means or

methods of general criminal investigation that are unlawful, tortious, or

otherwise prohibited” if those means or methods “would be unlawful for a

similarly situated private actor to perform.” I wish our state law

enforcement officials the best of luck in trying to decipher what methods

of criminal investigation and exceptions to the warrant requirement are

now available to them in light of that conclusion.

In my opinion, the Iowa Constitution does not provide greater

protections than the Fourth Amendment to the United States Constitution

for the warrantless search of garbage set out for collection in a publicly

accessible area such that the defendant had a reasonable expectation of

privacy in his garbage. Additionally, the defendant’s garbage is not a

constitutionally protected “effect” under the Federal and State

Constitutions, so I cannot conclude the officer violated Wright’s search and

seizure protections by retrieving Wright’s garbage.

I. The Parties’ Actual Arguments on Appeal.

Wright’s argument is twofold. First, Wright asks us to interpret

article I, section 8 of the Iowa Constitution to provide greater protections

than the Fourth Amendment in garbage set out for collection in a publicly

accessible area based on his belief that Iowans have an objectively

reasonable expectation of privacy in garbage set out for collection in a

publicly accessible area. Second, Wright maintains Officer Heinz’s

58

warrantless search of the garbage violated the Fourth Amendment to the

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

regardless of any privacy expectation because Officer Heinz trespassed on

Wright’s personal “effects” to obtain information.

In the past decade alone, our court has had no shortage of cases

examining whether we should depart from the United States Supreme

Court’s Fourth Amendment precedent to provide Iowans with greater

search and seizure protections under article I, section 8 of the Iowa

Constitution in various contexts. See, e.g., State v. Brown, 930 N.W.2d

840, 846–54 (Iowa 2019); State v. Gaskins, 866 N.W.2d 1, 6–16 (Iowa 2015);

State v. Short, 851 N.W.2d 474, 481–507 (Iowa 2014). In those cases, we

considered an array of nonexclusive factors in deciding whether to depart

from federal precedent, such as the text of the Iowa Constitution; the

history of our state constitutional provision; the structural differences in

the State and Federal Constitutions; related decisions of other states,

especially when interpreting similar constitutional text; and the practical

consequences of departure. See, e.g., Brown, 930 N.W.2d at 846–54

(examining evidence from the debates over the Iowa Constitution, the scope

of our State and Federal Constitutions and relevant precedent involving

them, the practical issues in departing from the Federal Constitution, and

related precedent from other states in declining to depart from the Fourth

Amendment regarding the relevance of an officer’s motivations for stopping

motorists); Gaskins, 866 N.W.2d at 6–16 (same in the context of vehicle

search incident to arrest); Short, 851 N.W.2d at 481–507 (same in the

context of home search of probationer based on reasonable suspicion of

criminal activity). Meanwhile, Wright does not discuss any of those

considerations.

59

Instead, Wright’s argument about privacy expectations relies

exclusively on the City of Clear Lake’s ordinances regulating waste

management. Specifically, Wright’s argument in the section of his brief

advocating for departure from the federal precedent in California v.

Greenwood, 486 U.S. 35, 108 S. Ct. 1625 (1988), spans the following few

sentences:

Not only was there a trespass on the containers to search for

information, but Appellant, like so many other Iowans across

the state, has an objectively reasonable expectation of privacy

codified by municipal code. It is against the law in Clear Lake,

Iowa for any person to scavenge garbage, which completely

undermines the rationale in Greenwood that garbage is

knowingly exposed to “children, scavengers, snoops and other

members of the public.” Under these ordinances, the contents

of an individual’s garbage inside the container remain private.

Appellant can expect the privacy of his garbage will be

maintained up to the point where the licensed collector

physically takes possession of his garbage bags.

It is important to note what Wright did not argue in his brief. Wright’s

brief never so much as cited Carpenter v. United States, 585 U.S. ___, 138

S. Ct. 2206 (2018), despite the majority’s reliance upon it, let alone argued

that it formed a basis for rejecting Greenwood. Understandably, the State

did not discuss or even cite Carpenter because it was under the impression

that it was fighting the case on other issues. Instead of asking us to

overrule the Iowa precedent following Greenwood, Wright’s brief asks us to

depart from it under the Iowa Constitution based on ordinances regulating

waste management. This is a substantially different argument than asking

us to disregard Greenwood because it is no longer the controlling Supreme

Court precedent on this issue. “[W]e do not create issues or unnecessarily

overturn existing law sua sponte when the parties have not advocated for

such a change.” Feld v. Borkowski, 790 N.W.2d 72, 78 n.4 (Iowa 2010).

60

Nor do we address arguments raised for the first time on appeal, see

State v. Derby, 800 N.W.2d 52, 60 (Iowa 2011), but that is what the majority

does in declaring, “an officer acts unreasonably when, without a warrant,

the officer . . . uses means or methods of general criminal investigation that

are unlawful, tortious, or otherwise prohibited.” Although Wright cites

Clear Lake ordinance 30.08 in his appellate brief, which states, “The Police

Chief shall establish such rules, not in conflict with the Code of

Ordinances, and subject to the approval of the Council, as may be

necessary for the operation of the department,” he never presented this

ordinance or argument in support of his claim before the district court.

Clear Lake, Iowa, Code of Ordinances § 30.08 (2003). Thus, he failed to

preserve it for our review. Derby, 800 N.W.2d at 60. Nonetheless, as I will

discuss later, police have privileges at their disposal to carry out their

duties that ordinary citizens lack. See, e.g., State v. Lloyd, 513 N.W.2d

742, 745 (Iowa 1994) (discussing means police officers have to arrest an

individual that private citizens lack, including the ability of police to engage

“in the dangerous pursuit of other vehicles” that might violate traffic laws).

That Officer Heinz’s actions may have violated or conflicted with a city

ordinance does not automatically render his actions illegal, let alone a

violation of Wright’s constitutional rights.

Although Carpenter was discussed during oral argument through

questioning from members of our court, “we do not consider issues raised

for the first time in oral argument.” Dilley v. City of Des Moines, 247 N.W.2d

187, 195 (Iowa 1976) (en banc); see also Principal Mut. Life Ins. v. Charter

Barclay Hosp., Inc., 81 F.3d 53, 56 (7th Cir. 1996) (noting that it “would

not be quite cricket” to decide a case on a ground that had not been raised

at all before oral argument of the appeal). In any event, Wright’s counsel

was not the one to invoke Carpenter. Rather, Justice Appel precipitated

61

the discussion on this unbriefed argument, and he did so only in

questioning the State. It was clear from the oral argument that the State

was justifiably caught off guard and ill-prepared to address Justice Appel’s

approach, and the State was unfairly deprived of its ability to properly brief

and argue this case due to the majority’s decision to depart from the

arguments presented on appeal. Similarly, Justice McDonald initiated the

discussion on Wright’s unpreserved argument about the ability of police

officers to engage in actions that exceed the ability of private citizens (or in

the words of his majority opinion, the ability of the police to use “means or

methods of general criminal investigation that are unlawful, tortious, or

otherwise prohibited”), and this, too, was only in questioning the State.

Consequently, the majority’s analysis is almost entirely its own without

regard for the parties’ actual arguments.

“[T]he adversary process functions most effectively when we rely on

the initiative of lawyers, rather than the activism of judges, to fashion the

questions for review.” New Jersey v. T.L.O., 468 U.S. 1214, 1216, 104 S.

Ct. 3583, 3585 (1984) (Stevens, J., dissenting) (emphasis added). “Our law

clerks and judges should not be doing the work of counsel . . . . We are not

advocates and should not usurp a party’s strategy.” King v. State, 818

N.W.2d 1, 48 (Iowa 2012) (Wiggins, J., dissenting) (citation omitted); see

also United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996) (noting it

is “not a sound practice” for the court and its law clerks or staff attorneys

to flag issues the defendant could have raised but did not). Luckily for

Wright, his strategy did not matter because the majority was willing to

make the arguments that he did not make. Given the majority’s generosity

and willingness to make arguments not briefed or preserved, I fail to see

how members of the majority can continue to assert in criminal cases that

defendants have “waived” state constitutional arguments on appeal under

62

the rationale that those defendants did not cite authority or adequately

brief the issue. See State v. Gibbs, 941 N.W.2d 888, 902 (Iowa 2020)

(McDonald, J., concurring specially in the judgment, joined by Oxley, J.)

(“In this case, Gibbs waived his argument arising under the Iowa

Constitution. The entirety of the defendant’s argument in support of his

state constitutional claim is two sentences. . . . While Gibbs identified a

state constitutional claim, he did not make more than a perfunctory

argument in support of the state constitutional claim, and he did not cite

any authority in support of his state constitutional claim. Gibbs’s

perfunctory argument without citation to any authority constitutes waiver

of his state constitutional claim.”).

The public has criticized this court for reaching out and

deciding issues not raised or briefed on appeal. This is another

case for the critics to add to their list. We cannot have a rule

of law that we reach out and decide an issue not briefed or

pressed by the parties on appeal in order to achieve a desired

result.

King, 818 N.W.2d at 48.

Nevertheless, even if the majority was correct in concluding Wright

properly argued that Carpenter forms the basis for rejecting Greenwood, I

would still affirm the district court’s suppression ruling and Wright’s

subsequent conviction on the merits for the reasons discussed below.

II. The District Court’s Ruling Should be Affirmed Under

Existing Iowa and Federal Precedent.

The majority departs from federal decisions and overturns Iowa

caselaw adopting those decisions based on various United States Supreme

Court Justices’ dissenting or concurring opinions. Perhaps the more

recent shift in the makeup of the Supreme Court over the past few years

now favors overturning Greenwood, abandoning the Katz test, and

recognizing constitutional protections for garbage placed in a publicly

63

accessible area for collection. But, “each of the Justices on the Carpenter

Court, including those in the majority and all of the dissenters, has, at

some point, either authored or joined an opinion critical of Katz, or at least

conceding the difficulty of applying it[],” yet Katz still served as the

foundation for the Court’s decision in Carpenter. Nicholas A. Kahn-Fogel,

Katz, Carpenter, and Classical Conservatism, 29 Cornell J.L. & Pub. Pol’y

95, 106 (2019). “[N]otwithstanding Justice Thomas’s protestations and

Justice Gorsuch’s doubts, the Katz standard is, for now, alive and well,” as

is Greenwood, and it is not for us to decide that is no longer the case simply

because we think another approach is “better.” Id. at 97 (footnote omitted).

A. The Expectation of Privacy in Garbage Set Out for Collection

in a Publicly Accessible Area. The Fourth Amendment to the United

States Constitution protects individuals from “unreasonable searches and

seizures” of their “persons, houses, papers, and effects.” U.S. Const.

amend. IV (“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause . . . .”);

see also United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 949

(2012). Similarly, article I, section 8 of the Iowa Constitution protects

persons against “unreasonable seizures and searches” of “their persons,

houses, papers and effects.” Iowa Const. art. I, § 8 (“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 . . . .”). “We generally ‘interpret the scope

and purpose of the Iowa Constitution’s search and seizure provisions to

track with federal interpretations of the Fourth Amendment’ ” due to their

almost identical language while remaining cognizant of our duty to

64

interpret the Iowa Constitution independently. Brown, 930 N.W.2d at 847

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

Although we have not addressed the constitutionality of a

warrantless search or seizure of garbage left for collection in a publicly

accessible area, both the United States Supreme Court and the Iowa Court

of Appeals have done so under similar facts as this case. In Greenwood, a

police investigator received information that the respondent might be

engaged in narcotics trafficking, so the investigator asked the

neighborhood’s regular trash collector to pick up the garbage bags that the

respondent had left on the curb in front of his home and turn them over to

her. 486 U.S. at 37, 108 S. Ct. at 1627. The investigator searched

through the garbage bags, found items in the bags indicative of narcotics

use, and used the information she gleaned from the garbage search to

support her application for a search warrant of the respondent’s home that

led to the respondent’s arrest on felony charges. Id. at 37–38, 108 S. Ct.

at 1627–28.

The Supreme Court held the Fourth Amendment did not prohibit the

warrantless search and seizure of garbage left for collection outside the

curtilage of a home because “society would not accept as reasonable

respondents’ claim to an expectation of privacy in trash left for collection

in an area accessible to the public.” Id. at 41, 108 S. Ct. at 1629. The

Court explained, “It is common knowledge that plastic garbage bags left on

or at the side of a public street are readily accessible to animals, children,

scavengers, snoops, and other members of the public.” Id. at 40, 108 S. Ct.

at 1628–29 (footnotes omitted). Further, the Court noted the respondent

had placed his garbage “at the curb for the express purpose of conveying it

to a third party, the trash collector, who might himself have sorted through”

it or given it to others to sort. Id. at 40, 108 S. Ct. at 1629. Therefore, the

65

Court reasoned, he could not have any reasonable expectation of privacy

in the garbage left for collection because he had deposited it “in an area

particularly suited for public inspection and, in a manner of speaking,

public consumption, for the express purpose of having strangers take it.”

Id. at 40–41, 108 S. Ct. at 1629 (quoting United States v. Reicherter, 647

F.2d 397, 399 (3d. Cir. 1981)). Finally, the Court declared that “the police

cannot reasonably be expected to avert their eyes from evidence of criminal

activity that could have been observed by any member of the public,” as

the Fourth Amendment does not protect such activity that a person

knowingly exposes to the public. Id. at 41, 108 S. Ct. at 1629.

Similarly, in State v. Henderson, the Iowa Court of Appeals concluded

the warrantless search and seizure of garbage left outside the defendant’s

home under markedly similar facts as Greenwood did not violate the Fourth

Amendment to the United States Constitution or article I, section 8 of the

Iowa Constitution. 435 N.W.2d 394, 396–97 (Iowa Ct. App. 1988); see also

State v. Skola, 634 N.W.2d 687, 691 (Iowa Ct. App. 2001) (declining to

depart from the holdings in Greenwood and Henderson under article I,

section 8 of the Iowa Constitution). The court of appeals relied on the

Supreme Court’s rationale, agreeing with the Supreme Court that there

was no societal understanding that garbage left for collection in an area

accessible to the public deserved “scrupulous protection from government

invasion.” Henderson, 435 N.W.2d at 396 (quoting Oliver v. United States,

466 U.S. 170, 178, 104 S. Ct. 1735, 1741 (1984)). Consequently, the court

of appeals “determine[d] the use of evidence obtained by searching the

defendant’s garbage did not intrude upon his legitimate expectation of

privacy and therefore, was properly considered by the magistrate in issuing

a search warrant of the defendant’s premises.” Id. at 397.

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In those cases, both the Supreme Court and the court of appeals

based their conclusions on the reasonable-expectation-of-privacy test

originally derived from Justice Harlan’s concurrence in Katz v. United

States, which declared that the Fourth Amendment only protects a person’s

“reasonable expectation of privacy.” 389 U.S. 347, 360, 88 S. Ct. 507, 516

(1967) (Harlan, J., concurring); see also Oliver, 466 U.S. at 182–83, 104

S. Ct. at 1743 (“[T]he correct inquiry [of whether government action violates

the Fourth Amendment] is whether the government’s intrusion infringes

upon the personal and societal values protected by the Fourth

Amendment.”); Greenwood, 486 U.S. at 39, 108 S. Ct. at 1628 (citing Oliver

v. United States and Justice Harlan’s Katz concurrence for the proposition

that a warrantless search and seizure of garbage left outside for collection

would only violate the Fourth Amendment “if respondents manifested a

subjective expectation of privacy in their garbage that society accepts as

objectively reasonable”); Henderson, 435 N.W.2d at 396 (noting the test to

determine whether a government action intrudes upon a person’s

legitimate expectation of privacy is “whether the government’s intrusion

infringes upon the personal and societal values protected by the fourth

amendment” (quoting State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (en

banc))). Under this analysis, Wright must show he had a subjective

expectation of privacy in the contents of the garbage he left out for

collection and this expectation of privacy was reasonable. See State v.

Brooks, 888 N.W.2d 406, 411 (Iowa 2016).

Our court has continued to use this analysis as part of our two-step

approach to determine whether there has been a violation of article I,

section 8 of the Iowa Constitution, which requires the defendant to

demonstrate a legitimate expectation of privacy in the area searched before

we can examine whether the search violated the defendant’s rights. See,

67

e.g., id. Wright now asks us to depart from those holdings and interpret

article I, section 8 of the Iowa Constitution to require greater protection

than the Fourth Amendment to the United States Constitution.

Particularly, Wright maintains Iowans have an objectively reasonable

expectation of privacy in their garbage set out for collection in a publicly

accessible area.

In his motion to suppress, Wright relied on chapters 105 and 106 of

the City of Clear Lake ordinances, which govern solid waste control and the

collection of solid waste, to support his argument that Iowans have a

reasonable expectation of privacy in the garbage they set out for collection

in a publicly accessible area. Wright notes these ordinances prohibit

anyone from scavenging who is not “an authorized solid waste collector,”

and establish that only solid waste collectors contracted with the city have

authority to collect garbage from residential premises. See Clear Lake,

Iowa, Code of Ordinances § 105.11(4); id. § 106.07. Accordingly, Wright

maintains he, “like so many other Iowans across the state, has an

objectively reasonable expectation of privacy codified by municipal code”

by which he “can expect the privacy of his garbage will be maintained up

to the point where the licensed collector physically takes possession of his

garbage bags.” I disagree.

While city ordinances may codify societal expectations of privacy in

some circumstances, the definitive purpose of the ordinances Wright relies

on has nothing to do with privacy. Rather, as Clear Lake, Iowa, Code of

Ordinances section 105.01 proclaims,

The purpose of the chapters in this Code of Ordinances

pertaining to Solid Waste Control and Collection is to provide

for the sanitary storage, collection and disposal of solid waste

and, thereby, to protect the citizens of the City from such

hazards to their health, safety and welfare as may result from

the uncontrolled disposal of solid waste.

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Thus, I have no doubt that the intent of this ordinance was to establish a

waste management and sanitation system to promote public health and

cleanliness. The majority expands this purpose by judicial fiat in order to

establish an expectation of privacy where there is none in ordinance

chapters focused on public hygiene. We should not “read something into

the law that is not apparent from the words chosen by the” city council.

State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017) (quoting State v. Iowa

Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)).

Moreover, Wright’s notion that Iowans have a reasonable expectation

of privacy in garbage that was left out for collection simply because a city

ordinance prohibits scavenging or establishes waste collection procedures

“is totally unrealistic, unreasonable, and in complete disregard of the

mechanics of its disposal.” United States v. Shelby, 573 F.2d 971, 973 (7th

Cir. 1978), cert denied, 439 U.S. 841, 99 S. Ct. 132 (1978) (affirming the

constitutionality of a warrantless search of defendant’s trash that he placed

in the garbage for collection under the Fourth Amendment). The removal

of garbage by a waste collection provider who could immediately turn the

garbage over to the police is no different than removal of the garbage by the

police themselves. Either way, Wright’s privacy expectation was the same

when he placed his garbage out for collection because he expressly did so

to convey it to a third party who could just as easily have sorted through it

“or permitted others, such as the police, to do so” without any input from

Wright. Greenwood, 486 U.S. at 40, 108 S. Ct. at 1629. Nothing in the

record suggests Clear Lake’s contracted waste collection providers or

sanitation department had any responsibility to protect the privacy of

Wright’s garbage, let alone “to help him dispose of the evidence of his

crimes.” Shelby, 573 F.2d at 973.

69

“[S]ociety’s experience with trash left at the alley or curb for

collection” demonstrates there is no objective expectation of privacy in the

contents of that trash. State v. A Blue in Color, 1993 Chevrolet Pickup, 116

P.3d 800, 804–05 (Mont. 2005). Organizations like Iowa Legal Aid warn

individuals that “[d]umpster diving” is a method of identity theft and

encourage Iowans to “[s]hred financial documents and paperwork with

personal information before you put them in the trash” as a way to protect

against identity theft. Iowa Legal Aid, Identity Theft (Mar. 30,

2011), https://www.iowalegalaid.org/resource/identity-theft-2

[https://perma.cc/7HDD-HJX7]. As the Delaware Superior Court stated

in holding no warrant was required to search garbage,

The media is replete with warnings to people not to put

personal items in their trash such as bills, receipts, mailers

from credit card companies, etc., which can be converted to

forged credit cards, etc. Some of the media coverage and much

advertising is not only to warn people not to do so but to

instead shred such documents. This regrettable phenomenon

over the last few years clearly emphasizes that reasonable

people must or should have a lessened expectation of privacy

in their trash. To put it differently, the expectation of privacy

is no longer reasonable in this situation.

State v. Ranken, 25 A.3d 845, 860 (Del. Super. Ct. 2010), aff’d sub nom.

Ranken v. State, No. 718, 2010, 2011 WL 2089603, at *1 (Del. May 24,

2011) (“[T]he final judgment of the Superior Court should be affirmed on

the basis of and for the reasons assigned by the Superior Court . . . .”).

The conclusion that the city’s ordinances regulating waste

management do not create an objectively reasonable expectation of privacy

is supported by a plethora of other states that have similarly examined the

impact of city ordinances regulating waste management on the privacy

interests of garbage set out for collection.10 For instance, the

10See, e.g., Rikard v. State, 123 S.W.3d 114, 120–21 (Ark. 2003) (rejecting

appellants’ claim that city ordinances regulating waste management and prohibiting

70

Massachusetts Supreme Judicial Court rejected a defendant’s claim that

an “ordinance allow[ing] only licensed trash collectors to transport garbage”

established a reasonable expectation of privacy in garbage. Commonwealth

v. Pratt, 555 N.E.2d 559, 567 (Mass. 1990). It reasoned that “licensed

collectors may have rummaged through the defendant’s garbage

themselves” and “once the defendant knew that the garbage would be

picked up by licensed collectors and deposited at the local landfill, he

should have known that others could gain access to the garbage.” Id.

The Arkansas Supreme Court rejected a defendant’s claim that city

ordinances prohibiting scavenging and disturbing the contents of

containers established a reasonable expectation of privacy in garbage.

Rikard v. State, 123 S.W.3d 114, 121 (Ark. 2003). It explained,

Without question, the Jonesboro city ordinances were not

created to provide citizens with an expectation of privacy in

their garbage. Rather, the intent of the ordinance undoubtedly

scavenging gave them a reasonable expectation of privacy in their garbage under the

Arkansas Constitution); State v. DeFusco, 620 A.2d 746, 752 n.17 (Conn. 1993) (rejecting

defendant’s argument that an ordinance prohibiting scavenging created a reasonable

expectation of privacy in garbage left at the curb for collection); State v. Schultz, 388 So.

2d 1326, 1327 (Fla. Dist. Ct. App. 1980) (holding a defendant did not have a reasonable

expectation of privacy in garbage that he left in the area in front of his home for collection

in accordance with the city ordinances governing garbage collection); Commonwealth v.

Pratt, 555 N.E.2d 559, 567 (Mass. 1990) (rejecting defendant’s claim that ordinances

regulating waste management establish a reasonable expectation of privacy); State v.

McMurray, 860 N.W.2d 686, 693–94 (Minn. 2015) (criticizing the dissent’s argument that

county ordinances regulating waste management require greater search and seizure

protections for garbage under the Minnesota Constitution than the United States

Constitution); State v. Brown, 484 N.E.2d 215, 218 (Ohio Ct. App. 1984) (per curiam)

(noting a municipal ordinance regulating waste collection did not establish a reasonable

expectation of privacy in garbage because the purpose of the ordinance was to promote

efficient garbage removal); Commonwealth v. Minton, 432 A.2d 212, 216–17 (Pa. Super.

Ct. 1981) (holding a township code prohibiting people other than the occupant from

removing garbage container covers did not provide the garbage container owner with a

reasonable expectation of privacy because the purpose of the code was for sanitation, not

privacy); State v. Stevens, 734 N.W.2d 344, 347–48 (S.D. 2007) (explaining city

ordinances regulating waste management “do not manifest [societal expectations of

privacy] simply because they dictate how persons are to place their trash for collection or

how the trash is to be collected,” especially because the city ordinances the defendant

cited were enacted for sanitation purposes).

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was to provide a city-wide system for waste management and

sanitation services, with an emphasis on cleanliness and

preventing any scattering of that garbage.

Id. The United States Supreme Court rejected a comparable argument in

Greenwood “that [Greenwood’s] expectation of privacy in his garbage

should be deemed reasonable as a matter of federal constitutional law

because the warrantless search and seizure of his garbage was

impermissible as a matter of California law.” 486 U.S. at 43, 108 S. Ct. at

1630.

In addition to the lack of an objectively reasonable expectation of

privacy in this case, there is scant evidence that Wright even knew of the

ordinances regulating scavenging or garbage collection to support his

argument that he maintained a subjective expectation of privacy. Even if

Wright was aware of the ordinances he cites, he still discarded his garbage

“in an area particularly suited for public inspection and, in a manner of

speaking, public consumption, for the express purpose of having strangers

take it.” Id. at 40–41, 108 S. Ct. at 1629 (quoting Reicherter, 647 F.2d at

399). He did not even place lids on his garbage cans.

If Wright wanted to ensure the contents of his garbage were private

as not to be seen by anyone, then his decision to place them at the edge of

the public alley without so much as a lid to cover them is illogical. Even if

no other humans went through Wright’s garbage, he was still exposing it

to the possibility that it would be visible to anyone—including law

enforcement—by placing it there. For example, a gust of wind could knock

Wright’s garbage cans over, exposing his garbage bags “to the predations

of dogs and raccoons” and the possibility of his garbage being “found

strewn across streets and alleyways.” A Blue in Color, 1993 Chevrolet

Pickup, 116 P.3d at 804–05. “[I]t is inconceivable that [he] intended to

72

retain a privacy interest in the discarded objects.” Reicherter, 647 F.2d at

399.

In Abel v. United States, the Supreme Court held a defendant

“abandoned” personal property items when he threw them away in the

hotel room garbage can and vacated the room, thereby giving the hotel the

“exclusive right to its possession” and to permit law enforcement to search

the wastebasket without a warrant. 362 U.S. 217, 241, 80 S. Ct. 683, 698

(1960). When questioned about the relevance of the abandonment theory

to this case at oral argument, Wright maintained the Supreme Court in

Greenwood—which it decided after Abel—rejected the argument that the

respondent was not entitled to an expectation of privacy because he

abandoned his property and any corresponding privacy interests in it when

he discarded it and placed it curbside for collection. Fundamentally, the

Supreme Court “never expressly, nor impliedly for that matter, rejected the

abandonment theory” in Greenwood, and “[t]ry as one might, no one is able

to point to a single passage in the Greenwood majority opinion that

suggests otherwise.” United States v. Redmon, 138 F.3d 1109, 1119 (7th

Cir. 1998) (Coffey, J., concurring). Justice Brennan’s dissent in Greenwood

proclaimed the majority “reject[ed] the State’s attempt to distinguish trash

searches from other searches on the theory that trash is abandoned.”

Greenwood, 486 U.S. at 51, 108 S. Ct. at 1634 (Brennan, J., dissenting).

Yet, Justice Brennan also criticized the majority for “rel[ying] heavily” on

lower court cases—the majority of which “rely entirely or almost entirely on

an abandonment theory”—as support for its holding that there is no

reasonable expectation of privacy in discarded garbage. Id. at 49 n.2, 108

S. Ct. at 1633 n.2.

Although the Supreme Court did not explicitly mention

“abandonment” in Greenwood, its analysis was couched in abandonment

73

language. It emphasized that there could be no reasonable expectation of

privacy in “discarded” items a person places in garbage left “in an area

particularly suited for public inspection and, in a manner of speaking,

public consumption, for the express purpose of having strangers take it.”

Id. at 40–41, 108 S. Ct. at 1629 (majority opinion) (emphasis added)

(second quoting Reicherter, 647 F.2d at 399). In doing so, it quoted and

cited various state and federal cases that relied on the abandonment

doctrine to determine the Fourth Amendment did not protect garbage left

for collection in a publicly accessible area. Id. at 40–42, 108 S. Ct. at 1629–

30 (citing cases). Therefore, Wright’s abandonment of the garbage in this

case is relevant to the analysis.

“Property is abandoned when the owner no longer wants to possess

it.” Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995)

(en banc). Wright’s decision to place his garbage bags in the garbage cans

at the edge of the public alley “for hauling to a public dump signifies

abandonment.” Shelby, 573 F.2d at 973. Though he apparently “decided

to assume the risk, calculating no one would think to search in his garbage

can[s], or he may have been careless, . . . he evidenced an intent in a

convenient but risky way to permanently disassociate himself from the

incriminating contents.” Id.

By placing his garbage bags at the edge of the public alley for

disposal, Wright was essentially “proclaiming to all the world that ‘I’m

through with this stuff; come and get it.’ ” Commonwealth v. Ousley, 393

S.W.3d 15, 34–35 (Ky. 2013) (Cunningham, J., concurring in result).

Wright did not even care to put the lids on his garbage cans, let alone try

to use any more secure method—like a padlock or “private property” sign,

for example—to keep people out of his garbage. Ultimately, a person’s

discarded garbage does not change constitutional dimensions based on

74

who is searching through it. When Wright discarded his garbage, he

abandoned his interest in it, along with any Fourth Amendment or article

I, section 8 protections in the process. See, e.g., United States v. Thomas,

864 F.2d 843, 845 (D.C. Cir. 1989) (“When individuals voluntarily abandon

property, they forfeit any expectation of privacy in it that they might have

had.” (quoting United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.

1983))); Reicherter, 647 F.2d at 399 (“[T]he placing of trash in garbage cans

at a time and place for anticipated collection by public employees for

hauling to a public dump signifies abandonment.” (alteration in original)

(quoting Shelby, 573 F.2d at 973)); United States v. Vahalik, 606 F.2d 99,

101 (5th Cir. 1979) (per curiam) (“[T]he act of placing garbage for collection

is an act of abandonment which terminates any [F]ourth [A]mendment

protection . . . .”).

The city’s ordinance prohibiting scavenging recognizes this concept

of garbage as abandoned property. In Iowa, an individual cannot be

convicted of theft for taking abandoned objects because theft requires

“[t]ak[ing] possession or control of the property of another, or property in

the possession of another, with the intent to deprive the other thereof.”

Iowa Code § 714.1(1) (2017). Wright relinquished any interest in the

contents of his garbage when he discarded it at the edge of the public alley

for waste collection. There can be no intent to deprive Wright of objects he

already abandoned, and “[a]bandoned property belongs to the finder of the

property against all others, including the former owner.” Benjamin, 534

N.W.2d at 406.

The majority’s conclusion that the city’s antiscavenging ordinance

establishes the city’s intent to protect the property and corresponding

privacy interests of its residents renders the antiscavenging ordinance

redundant and unnecessary. The Iowa Code already criminalizes the theft

75

of property through its theft statute as at least a simple misdemeanor

offense depending upon the monetary value of the property. See Iowa Code

§ 714.2(5) (classifying the lowest degree of theft as a simple misdemeanor).

At the time of Officer Heinz’s garbage pull, simple misdemeanor theft

offenders were subject to fines as high as $625 and “imprisonment not to

exceed thirty days” for simple misdemeanor theft. Iowa Code § 903.1(1)(a).

Because a person who takes the property of another is already

subject to criminal prosecution for theft, there would be no need for an

additional ordinance prohibiting scavenging if the city were simply trying

to protect a property interest in garbage. As I noted earlier, this is also

clear from the city’s purpose statement governing the antiscavenging

ordinance, which asserts the purpose of the ordinance is “to protect the

citizens of the City from such hazards to their health, safety and welfare as

may result from the uncontrolled disposal of solid waste.” Clear Lake, Iowa,

Code of Ordinances § 105.01. An ordinance enacted to promote public

hygiene does not establish an objectively reasonable expectation of privacy

in garbage.

Overall, I would conclude the existence of city ordinances in Iowa

regulating waste management does not require us to provide greater

protections under article I, section 8 of the Iowa Constitution against the

warrantless search of garbage set out for collection in a publicly accessible

area. Thus, I would review Wright’s privacy expectations in accordance

with Greenwood. Wright abandoned the garbage at issue at the edge of a

public alley outside his home anticipating the waste collector would take

it, but any member of the public—including the police—could have

accessed his garbage. As the Supreme Court held in Greenwood, a person

does not have an objectively reasonable expectation of privacy in garbage

left for collection in a publicly accessible area. This holding is supported

76

by the overwhelming majority of state courts that have examined this issue

under the United States Constitution or their respective state

constitutions.11 For these reasons, I believe the district court correctly

11See, e.g., State v. Fassler, 503 P.2d 807, 813–14 (Ariz. 1972) (en banc) (holding

law enforcement’s search of the garbage can located in an alleyway at the premises where

defendant was arrested did not violate the Fourth Amendment because the defendant

surrendered his privacy in the garbage’s contents by placing them in the publicly

accessible garbage can); Rikard, 123 S.W.3d at 120–21 (rejecting appellants’ claim that

city ordinances regulating waste management and prohibiting scavenging gave them a

reasonable expectation of privacy in their garbage under the Arkansas Constitution);

People v. Hillman, 834 P.2d 1271, 1277–78 (Colo. 1992) (en banc) (upholding law

enforcement’s search of defendant’s garbage because defendant “did not have a

reasonable expectation of privacy in his garbage when he placed his garbage adjacent to

the sidewalk, rendering it readily accessible to the public”); DeFusco, 620 A.2d at 752

n.17 (rejecting defendant’s argument that an ordinance prohibiting scavenging created a

reasonable expectation of privacy in garbage left at the curb for collection); Ranken, 25

A.3d at 859–60 (holding the Delaware Constitution’s search and seizure provision did not

protect a trash container left curbside on a public sidewalk because the defendant’s

expectation of privacy in the trash was not objectively reasonable); Schultz, 388 So. 2d at

1327 (holding a defendant did not have a reasonable expectation of privacy in garbage

that he left in the area in front of his home for collection in accordance with the city

ordinances governing garbage collection); Scott v. State, 606 S.E.2d 312, 315 (Ga. Ct.

App. 2004) (upholding law enforcement’s search of defendant’s garbage left out for

collection because the defendant abandoned the contents of the garbage by placing them

out for collection and thus had no reasonable expectation of privacy in them); State v.

Donato, 20 P.3d 5, 10 (Idaho 2001) (holding the Idaho Constitution does not provide

greater protection to privacy rights in garbage than the United States Constitution and

no objectively reasonable expectation of privacy exists in garbage left out for collection

because it “is knowingly exposed to public view”); People v. Stage, 785 N.E.2d 550, 552

(Ill. App. Ct. 2003) (affirming “[t]he long-standing precedent in Illinois . . . that an

individual has no reasonable expectation of privacy protection in his garbage”); State v.

Alexander, 981 P.2d 761, 766–67 (Kan. Ct. App. 1999) (holding law enforcement’s search

of defendant’s garbage was lawful because defendant had no reasonable expectation of

privacy in garbage placed in a dumpster outside by the publicly accessible curb); State v.

Rando, 848 So. 2d 19, 23 n.3 (La. Ct. App. 2003) (holding the search of defendant’s

garbage was reasonable based on the United States Supreme Court’s holding in

Greenwood that “persons have no reasonable expectation of privacy in garbage”); State v.

Sampson, 765 A.2d 629, 636 (Md. 2001) (holding the Fourth Amendment does not protect

“trash [that] is placed for collection at a place that is readily accessible, and thus exposed,

to the public, [because] the person has relinquished any reasonable expectation of

privacy” in that trash); Pratt, 555 N.E.2d at 567 (holding law enforcement’s search of a

trash bag in front of the defendant’s residence did not violate the defendant’s right against

unreasonable searches and seizures under the Massachusetts Declaration of Rights

because defendant did not have a reasonable expectation of privacy in the contents of his

trash bag); People v. Thivierge, 435 N.W.2d 446, 447 (Mich. Ct. App. 1988) (per curiam)

(declining to provide greater search and seizure protections for garbage under the

Michigan Constitution than the United States Constitution because “the depositing of

garbage on or at the side of a public street . . . negates any reasonable expectation of

77

privacy in inculpatory items secreted therein”); McMurray, 860 N.W.2d at 693–94

(criticizing the dissent’s argument that county ordinances regulating waste management

require greater search and seizure protections for garbage under the Minnesota

Constitution than the United States Constitution); State v. Trahan, 428 N.W.2d 619, 623

(Neb. 1988) (holding that “[g]arbage left for collection at a designated location and

accessible to the public shall not be accorded constitutional protection”); People v. Crump,

1 N.Y.S.3d 866, 867 (App. Div. 2015) (holding law enforcement’s search of defendant’s

curbside garbage can did not violate the Fourth Amendment because “[t]he defendant

had no reasonable expectation of privacy in the refuse he placed at the curb”); State v.

Hauser, 464 S.E.2d 443, 447 (N.C. 1995) (upholding “a warrantless search of garbage by

police, after pickup by the regular collector in the normal manner”); State v. Schmalz, 744

N.W.2d 734, 742 (N.D. 2008) (upholding law enforcement’s warrantless search of

defendant’s garbage because defendant “lost his expectation of privacy when he placed

the trash for collection, a

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