State of Iowa v. Scottize Danyelle Brown

APPEL, Justice (dissenting).

Under article I, section 8 of the Iowa Constitution, can a police officer use a common minor traffic violation as an after-the-fact pretext to seize a vehicle and its passengers when the actual reason for the stop was constitutionally inadequate? Today's majority says yes. I say NO!

I. Summary.

History demonstrates that one of the fundamental purposes of search and seizure law is to cabin the discretion of police officers in choosing whom to subject to search and seizure. Generalized discretion in the hands of a law enforcement official has been anathema to the search and seizure provisions of both the Fourth Amendment and article I, section 8 of the Iowa Constitution. No case considering search and seizure issues can be consistent with the history and purpose of the constitutional provisions without carefully considering whether the discretion of police officers is so unbridled that it vests in them power equivalent to the hated general authority to search.

As will be seen below, in my view, law enforcement officers have what amounts to general authority to seize drivers on the open road due to the density of traffic regulations and the pervasiveness of minor violations. That means that the traditional limitations to search and seize do not apply on the open road and the risk of arbitrary enforcement is great. As a result, consistent with the history and purpose of search and seizure law, there must be constitutional restraints on the generalized discretion in order to protect citizens from arbitrary actions of law enforcement.

For many years, our legal tradition frowned on pretextual searches as violating search and seizure principles. Early federal cases questioned the validity of pretextual searches. And up until the 1990s, the trend among state courts was to disapprove pretextual searches as violating search and seizure. Iowa caselaw was part of the general trend for decades.

All that changed when the Supreme Court announced its decision in Whren v. United States , 517 U.S. 806 , 811-16, 116 S. Ct. 1769 , 1773-76, 135 L.Ed.2d 89 (1996). As will be explored below, Whren departed from the trend in state courts and made a flawed turn in the development of search and seizure law. In my view, the wrong turn made in Whren should not be emulated by this court in its interpretation of the Iowa Constitution.

As a state supreme court, we are not bound by Whren but should only consider it to the degree it is persuasive. It is well established in other states and in Iowa that the mere fact there is a similarity in the language of the Fourth Amendment and article I, section 8 of the Iowa Constitution does not mean that federal precedent has any more power beyond its ability to persuade. I find Whren unpersuasive because of its failure to limit general police discretion to engage in roadway seizures. In light of its unconvincing rationale and the weakness of existing authority, the doctrine of stare decisis does not excuse us from considering the validity of pretextual stops under the Iowa Constitution.

The decision in this case is bad law. The approach of the majority fails to recognize the history of search and seizure law and the importance of curbing generalized law enforcement discretion, fails to recognize that law enforcement in practice has general authority to stop vehicles on the open road due to the pervasiveness of regulations, fails to recognize or deal with the problems of implicit bias, fails to recognize *872 the reality of racial profiling, fails to recognize the shortcomings of alternative remedies, and fails to recognize the constitutional harms caused by generalized seizures on the open road.

Because of the importance of the issue, an in-depth analysis of the history of search and seizure law, the doctrinal developments in the law, and the impact on the law in light of current realities is appropriate. We simply should not bless pretextual stops by law enforcement without a thorough understanding of where the law has been, how it has evolved, and how it might develop.

II. Factual Background and Proceedings.

A. Initial Proceedings. On November 23, 2015, the State filed a trial information charging Scottize Brown with a second offense of operating a motor vehicle while intoxicated, an aggravated misdemeanor, in violation of Iowa Code section 321J.2(2)( b ) (2016). Brown pled not guilty. She subsequently filed a motion to suppress, claiming she was unlawfully subjected to a pretextual stop. In her motion to suppress, Brown claimed that the stop violated both the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution.

B. Evidence Presented at the Motion to Suppress Hearing. At the motion to suppress hearing, Waterloo police officer Justin Brandt testified that he observed a Lincoln Navigator cross the centerline while driving through an intersection on a yellow light in Waterloo, Iowa, in the early morning hours. Officer Brandt told the court he followed the vehicle and "ended up running the license plate on it." He determined that the registered owner of the vehicle had a valid license. Officer Brandt testified that he then "got curious" and, "having the time to do so," opened up a database and "somewhere in that database [he] ended up seeing that there is some kind of connection with gang activity or something with the registered owner." Officer Brandt further testified that he noticed that one of the two license plate lamps on the vehicle was not operating. According to Brandt, he "wasn't even going to stop" the car for the traffic violations until he ran the plate and learned of the gang affiliation of the owner. Upon learning of the gang affiliation, he wanted to "poke around and see what's up."

Officer Brandt told the court he then followed the vehicle for a couple of blocks, after which he activated his emergency lights to conduct a traffic stop. The vehicle continued on, however, and Officer Brandt initiated his siren. At that point, the vehicle stopped.

Officer Brandt approached the vehicle and obtained identification from Brown as the driver of the vehicle. Officer Brandt testified that he could smell alcohol and saw an open can of beer in the front cup holder. According to Officer Brandt, Brown admitted to drinking earlier but said the open can was not hers. Officer Brandt determined that Brown was driving with a suspended license and transported her to the police station. At the police station, Officer Brandt stated, Brown failed several field sobriety tests and refused to submit to a breath test.

C. District Court Ruling on the Motion to Suppress. The district court denied Brown's motion to suppress. It noted that Officer Brandt first observed the vehicle at a red light where it made an improper turn. The district court found that after observing the improper turn, Officer Brandt determined that the registered owner was associated with local gang activity. It further found that Officer Brandt followed the vehicle to another red light, where he observed one of the vehicle's *873 license plate lights was not properly functioning. According to the district court, it was apparent that Officer Brandt would not have made the stop absent the gang affiliation of the registered owner.

The district court held that notwithstanding the subjective motivation of Officer Brandt, he had observed a traffic infraction-the improper turn-as well as an equipment violation-the license plate light. It held that because there were objective violations, the subjective motive of Officer Brandt did not matter. In support of its legal conclusion, the district court cited State v. Aderholdt , 545 N.W.2d 559 , 563 (Iowa 1996), and State v. Harrison , 846 N.W.2d 362 (Iowa 2014). As a result, the district court denied the motion to suppress. 18

The matter proceeded to trial on the minutes of testimony. The district court found Brown guilty of operating a motor vehicle while intoxicated, second offense. Brown appealed.

D. Issues on Appeal. On appeal, Brown argues that the district court erred by failing to suppress the evidence arising from the seizure of the automobile she was driving. Brown claims that the stop was not, in fact, initiated as a result of a minor traffic infraction but was pretextual in nature and that the real reason for the stop was constitutionally insufficient. On appeal, Brown makes her claim solely under article I, section 8 of the Iowa Constitution.

III. Standard of Review.

This court reviews claims of unconstitutional searches and seizures de novo. State v. Gaskins , 866 N.W.2d 1 , 5 (Iowa 2015). In engaging in de novo review, "[w]e independently evaluate the totality of the circumstances found in the record, including the evidence introduced at both the suppression hearing and at trial." State v. Vance , 790 N.W.2d 775 , 780 (Iowa 2010). Here, however, Brown waived her right to a jury trial and pled guilty. As a result, there is no trial court evidentiary record to review.

IV. Overview of Search and Seizure Law.

A. Historical Overview of Relevant Search and Seizure Law.

1. Hatred of general warrants and writs of assistance animates the American Revolution. In several recent cases, this court explored the history of search and seizure law under the Federal and Iowa Constitutions. See, e.g. , Godfrey v. State , 898 N.W.2d 844 , 866-67 (Iowa 2017) ; State v. Short , 851 N.W.2d 474 , 481-84 (Iowa 2014) ; State v. Baldon , 829 N.W.2d 785 , 805-09 (Iowa 2013) (Appel, J., specially concurring); State v. Ochoa , 792 N.W.2d 260 , 269-75 (Iowa 2010). A brief summary of this history provides the context for consideration of the questions posed in this case.

One of the great advancements in English law during the eighteenth century *874 was the development and clear articulation of judicial protection of individuals from arbitrary, government-sponsored search and seizure. The key cases center around the efforts of Lord Halifax's government to suppress dissent. Government agents generally ransacked residences and premises looking for telltale signs of involvement in the publication of a scurrilous antigovernment broadside. Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation § 2.2.3.2, at 36 (2008); Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789- 1868 , at 20 (2006). In a series of cases, the English courts held that such searches without probable cause were illegal and imposed hefty fines against the perpetrators. Entick v. Carrington (1765) 95 Eng. Rep. 807, 818; 2 Wils. K.B. 275, 292; Wilkes v. Wood (1763) 98 Eng. Rep. 489, 498-99; Lofft 1, 18-19; Huckle v. Money (1763) 95 Eng. Rep. 768, 768-69; 2 Wils. K.B. 205, 205-07.

The forces of resistance to generalized governmental searches traveled in the boats over to the New World and landed in the infamous Paxton's Case. See Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review , 77 B.U. L. Rev. 925 , 946 (1997) [hereinafter Maclin, The Complexity of the Fourth Amendment ]. In Paxton's Case , James Otis Jr., a prominent Massachusetts lawyer and powerful orator, bitterly attacked the Crown's provincial agents for engaging in arbitrary searches under generalized writs of assistance that did not name a specific individual but authorized the Crown's minions to search in their discretion for evidence of evasion of British mercantile policy. William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 , at 377-82, 385-95 (2009) [hereinafter Cuddihy]; Maclin, The Complexity of the Fourth Amendment , 77 B.U. L. Rev. at 946.

Otis lost the case, but the powerful blows struck by his forceful argument were not lost on John Adams, who declared, "Then and there the Child Independence was born." Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 37 (1966) (quoting Letter from John Adams to William Tudor (Mar. 29, 1817), in 10 The Works of John Adams 244, 247-48 (Charles Francis Adams ed., Bos., Little, Brown & Co. 1856)). Adams remembered the lessons of Paxton's Case when he drafted the Massachusetts Constitution of 1780. Leonard W. Levy, Origins of the Bill of Rights 158 (1999); John M. Murrin, From Liberties to Rights: The Struggle in Colonial Massachusetts , in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties 63, 91 (Patrick T. Conley & John P. Kaminski eds., 1992). In the Massachusetts Constitution, Adams included a search and seizure provision that limited the authority of the government to engage in searches without a particularized warrant. Thomas Y. Davies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547 , 684-85 (1999) [hereinafter Davies]. But cf. Tracey Maclin, Race and the Fourth Amendment , 51 Vand. L. Rev. 333 , 333-36 (1998) [hereinafter Maclin, Race and the Fourth Amendment ] (discussing arbitrary and discriminatory search and seizure practices of slave patrols in the colonial American South). See generally Akhil Reed Amar, Fourth Amendment First Principles , 107 Harv. L. Rev. 757 , 779-80 & n.87 (1994) (discussing historical predicate for the particularized-warrant requirement in American law).

The precedent set in the Massachusetts Constitution, and other state constitutions enacted shortly thereafter, had a dramatic influence on the development of the United States Constitution. See *875 Short , 851 N.W.2d at 481 -82 . The United States Constitution was ratified only upon the assurance by James Madison and others that a series of amendments known as the Bill of Rights would be adopted after enactment. In drafting the Bill of Rights, Madison looked to state constitutional tradition in developing what became the Fourth Amendment to the United States Constitution. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights , 90 Harv. L. Rev. 489 , 501 (1977) ; see Steven G. Calabresi et al., State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition? , 85 S. Cal. L. Rev. 1451 , 1454-55, 1491-92 (2012) [hereinafter Calabresi et al.]. Indeed, all of the Bill of Rights provisions had predecessors in prior state constitutions. See Calabresi et al., 85 S. Cal. L. Rev. at 1454-55, 1491-92. The notion of a bill of rights was not a concept developed by the federal framers and then copied by the states, but was a concept embraced by state constitutions and later adopted by the federal framers. Short , 851 N.W.2d at 481 -82 .

Iowa adopted two state constitutions: the first in 1846 and the second in 1857. See id. at 482 . The search and seizure language adopted in article I, section 8 of both the Iowa Constitution of 1846 and of 1857 is nearly identical to the Federal Constitution except for the use of a semicolon instead of a comma between the reasonableness clause and the warrant clause. Compare U.S. Const. amend. IV, with Iowa Const. art. I, § 8. The language in the Federal Constitution was largely derived from eight state constitutions that had search and seizure provisions prior to the adoption of the federal document. See Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 88 (expanded ed. 1992).

Although the language in the Fourth Amendment and article I, section 8 is similar. There is no reason for a state court to be "bound" by federal interpretations of the Fourth Amendment. As noted by Judge Jeffrey Sutton, "There is no reason to think, as an interpretive matter, that constitutional guarantees ..., even guarantees with the same or similar words, must be construed the same." Short , 851 N.W.2d at 487 (quoting Jeffrey S. Sutton, What Does-and Does Not-Ail State Constitutional Law , 59 U. Kan. L. Rev. 687 , 707 (2011) [hereinafter Sutton] ). We have explained the principles of independent interpretation of the Iowa Constitution on several occasions. See, e.g. , id. at 481-92 ; Baldon , 829 N.W.2d at 803-34 ; State v. Pals , 805 N.W.2d 767 , 771-72 (Iowa 2011) ; Ochoa , 792 N.W.2d at 264-67 .

We are not alone. See, e.g. , Wright v. State , 108 N.E.3d 307 , 315 (Ind. 2018) (explaining that the state constitution demands independent analysis in light of its uniqueness); State v. Gerschoffer , 763 N.E.2d 960 , 965 (Ind. 2002) ("The Indiana Constitution has unique vitality, even where its words parallel federal language."); People v. Barber , 289 N.Y. 378 , 46 N.E.2d 329 , 331 (N.Y. 1943) (pointing out that the New York Court of Appeals is "bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States"); State v. Arrington , 311 N.C. 633 , 319 S.E.2d 254 , 260 (N.C. 1984) ("In construing provisions of the Constitution of North Carolina, this Court is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States."); Commonwealth v. Edmunds , 526 Pa. 374 , 586 A.2d 887 , 895-96 (Pa. 1991) ("Although the wording of the Pennsylvania Constitution is similar in language to the Fourth *876 Amendment of the United States Constitution, we are not bound to interpret the two provisions as if they were mirror images, even where the text is similar or identical."); O'Boyle v. State , 117 P.3d 401 , 408 (Wyo. 2005) (noting that the search and seizure provision of the Wyoming Constitution, which parallels the Fourth Amendment, "constitutes a separate and independent source of protection of the rights of Wyoming citizens"). See generally Baldon , 829 N.W.2d at 824 .

2. Search and seizure concepts: Requirement of justification supporting particular searches and protection of the public against arbitrary government action. The search and seizure provisions of the Federal Constitution and the Iowa Constitution perform two functions. First, the search and seizure provisions are designed to ensure that government searches and seizures are justified. The justification ordinarily requires the state to establish to the satisfaction of a neutral magistrate that the proposed search or seizure is supported by probable cause and that the search is limited both with respect to its scope and purpose.

Second, however, the search and seizure provisions are designed to ensure that the government does not engage in the arbitrary exercise of power. For example, in Entick , Judge Pratt bristled at the notion that the Crown could willy-nilly engage in searches based on common activity. 95 Eng. Rep. at 818; 2 Wils. K.B. at 292. Judge Pratt acknowledged that although prior caselaw said that a man may be "punishable for having a libel in his private custody," "half the kingdom would be guilty ... if libels may be searched for and seized by whomsoever and wheresoever the Secretary of State thinks fit." Id.

Just as in Wilkes , Entick , and other cases, the attacks against writs of assistance in America prior to the American Revolution were also based on the potential of arbitrary enforcement of broadly framed, general power. As noted by the Supreme Court in one of its first Fourth Amendment cases, James Otis declared the writs of assistance were

"the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;" since they placed "the liberty of every man in the hands of every petty officer."

Boyd v. United States , 116 U.S. 616 , 625, 6 S. Ct. 524 , 529, 29 L.Ed. 746 (1886) (quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 368 (Bos., Little, Brown & Co., 5th ed. 1883)), abrogations on other grounds recognized by Fisher v. United States , 425 U.S. 391 , 407-09, 96 S. Ct. 1569 , 1579-80, 48 L.Ed.2d 39 (1976). "[C]olonists who battled the British did not trust or defer to the judgments of British customs officials" in furthering what the British, no doubt, thought was the critically important public policy of financing the cost of the public defense of the colonists, through arbitrary search and seizure of untaxed goods authorized by open-ended writs. See Tracey Maclin, The Central Meaning of the Fourth Amendment , 35 Wm. & Mary L. Rev. 197 , 248 (1993) [hereinafter Maclin, The Central Meaning of the Fourth Amendment ].

Indeed, just as, according to Entick , half the kingdom would be subject to arbitrary search and seizure because of the prevalence of private libel, 95 Eng. Rep. at 818; 2 Wils. K.B. at 292, smuggling to avoid taxes in the colonies was extremely common, Barbara C. Salken, *877 The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses , 62 Temp. L. Rev. 221 , 255-56 (1989). It is not surprising that, in the New World, warnings arose about unfettered discretion to search and seize. In words echoing Judge Pratt, Mercy Otis Warren, James Otis's daughter, cautioned that without a Bill of Rights, the proposed Federal Constitution would tolerate "the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure." Paul Finkelman, The Ten Amendments as a Declaration of Rights , 16 S. Ill. U. L.J. 351 , 392 (1992) [hereinafter Finkelman] (quoting A Columbian Patriot (Mercy Otis Warren), Observations on the New Constitution, and on the Federal and State Conventions (1788), reprinted in 16 The Documentary History of the Ratification of the Constitution 272, 281 (Merrill Jensen ed., 1976)). In short, the "general warrants known as writs of assistance [that] ... bedeviled the colonists" remained "[v]ivid in the memory of the newly independent Americans." Stanford v. Texas , 379 U.S. 476 , 481, 85 S. Ct. 506 , 510, 13 L.Ed.2d 431 (1965).

In the words of Professor Anthony Amsterdam in his often cited and unsurpassed article on the Fourth Amendment, search and seizure law protects against not only unjustified searches but also arbitrary searches and seizures "conducted at the discretion of executive officials, who may act despotically and capriciously in the exercise of the power to search and seize." Anthony G. Amsterdam, Perspectives on the Fourth Amendment , 58 Minn. L. Rev. 349 , 411 (1974) [hereinafter Amsterdam]. Professor Amsterdam went on to explain,

A paramount purpose of the fourth amendment is to prohibit arbitrary searches and seizures as well as unjustified searches and seizures.... Arbitrary searches and seizures are "unreasonable" searches and seizures; ruleless searches and seizures practiced at the varying and unguided discretion of thousands of individual peace officers are arbitrary searches and seizures; therefore, ruleless searches and seizures are "unreasonable" searches and seizures.

Id. at 417 . Before the innovations in search and seizure doctrine in the Burger-Rehnquist-Roberts era, the Supreme Court repeatedly recognized that the constitutional limitations on search and seizure protect people against arbitrary government acts. See, e.g. , Camara v. Mun. Ct. of S.F. , 387 U.S. 523 , 528, 87 S. Ct. 1727 , 1730, 18 L.Ed.2d 930 (1967) ; see also United States v. Ortiz , 422 U.S. 891 , 895, 95 S. Ct. 2585 , 2588, 45 L.Ed.2d 623 (1975) ; United States v. Brignoni-Ponce , 422 U.S. 873 , 878, 95 S. Ct. 2574 , 2579, 45 L.Ed.2d 607 (1975).

By controlling otherwise unfettered search and seizure discretion of law enforcement, the Fourth Amendment, from the get-go, protected unpopular minorities against majoritarian government institutions. For example, Madison-the author of the Fourth Amendment-was well aware of the general searches of the homes of unpopular minority Philadelphia Quakers whose pacifist inclinations were thought to be evidence that they were British spies. See Cuddihy at 618-19; Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment , 74 N.Y.U. L. Rev. 956 , 996 (1999) [hereinafter Thompson]. Although African-Americans were not afforded equal status by the federal government until at least the passage of the Reconstruction Amendments, the notion that the Fourth Amendment was designed to protect powerless minorities seems to have been well established. See Thompson, 74 N.Y.U. L. Rev. at 996-98. As noted by prominent legal scholar John Hart Ely, the Fourth Amendment is "concerned with avoiding indefensible inequities in treatment" as it may be seen as a "harbinger of the Equal Protection Clause." John Hart Ely, Democracy *878 and Distrust: A Theory of Judicial Review 97 (1980).

In light of the above history, Chief Justice Warren Burger, then serving on the D.C. Circuit Court of Appeals, accurately observed that the search and seizure provisions of the Fourth Amendment reflect "deeply rooted national skepticism toward police and indeed all public authority," "a sort of briny irreverence toward officials." Warren E. Burger, Who Will Watch the Watchman? , 14 Am. U. L. Rev. 1 , 1, 4 (1964) [hereinafter Burger] (quoting Edmond Cahn, The Predicament of Democratic Man 24 (1961) [hereinafter Cahn] ). The founders "viewed official power with an almost paranoid suspicion; and they believed that suspicion justified by power's inherent nature." Donald Dripps, Living With Leon, 95 Yale L.J. 906 , 938 (1986). Professor Amsterdam, after reviewing the history of the Fourth Amendment, wrote that "[t]he Bill of Rights in general and the fourth amendment in particular are profoundly anti-government documents." Amsterdam, 58 Minn. L. Rev. at 353. Professor Tracey Maclin agrees, noting that "the central meaning of the Fourth Amendment is distrust of police power and discretion." Maclin, The Central Meaning of the Fourth Amendment , 35 Wm. & Mary L. Rev. at 201.

The Supreme Court reflected the attitude of the Revolutionary Era when it observed in McDonald v. United States that "[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted." 335 U.S. 451 , 456, 69 S. Ct. 191 , 193, 93 L.Ed. 153 (1948). Similarly, in Trupiano v. United States , the Supreme Court stated that "sad experience had taught [the people of the United States] that the right to search and seize should not be left to the mere discretion of the police." 334 U.S. 699 , 709-10, 68 S. Ct. 1229 , 1234, 92 L.Ed. 1663 (1948), overruled in part on other grounds by United States v. Rabinowitz , 339 U.S. 56 , 65-66, 70 S. Ct. 430 , 435, 94 L.Ed. 653 (1950), overruled by Chimel v. California , 395 U.S. 752 , 766-68, 89 S. Ct. 2034 , 2041-43, 23 L.Ed.2d 685 (1969). In Johnson v. United States , the Supreme Court emphasized that the Constitution places individual interests in privacy, personal security, and human dignity on a higher plane than society's interest in catching criminals. See 333 U.S. 10 , 13-14, 68 S. Ct. 367 , 368-69, 92 L.Ed. 436 (1948).

While article I, section 8 of the Iowa Constitution was adopted several decades after the Federal Constitution and the Bill of Rights, the Iowa constitutional provision was also designed to protect individuals against the unjustified and arbitrary exercise of government power. Indeed, the placement of the Iowa Bill of Rights in the very first article of the Iowa Constitution emphasizes its constitutional importance. See Baldwin v. City of Estherville , 915 N.W.2d 259 , 285 (Iowa 2018) (Appel, J., dissenting). Further, article I, section 1 of the Iowa Constitution, the prelude to all other provisions of article I, emphasizes the "inalienable" rights of Iowans. Iowa Const. art. I, § 1 ; see Baldwin , 915 N.W.2d at 285 . According to George Ells, chair of the Committee on the Preamble and Bill of Rights of the 1857 Iowa Constitutional Convention, our Bill of Rights

would enlarge, and not curtail[,] the rights of the people ... [and] put upon record every guarantee that could be legitimately placed there in order that Iowa ... [would] have the best and most clearly defined Bill of Rights.

1 The Debates of the Constitutional Convention of the State of Iowa 100 (W. Blair Lord rep., 1857) [hereinafter The Debates ], https://www.statelibraryofiowa.org/services/collections/law-library/iaconst. See generally Short , 851 N.W.2d at 482-83 (discussing development of Iowa's Bill of *879 Rights). If the Fourth Amendment is to be read with a "briny irreverence" toward government power, Burger, 14 Am. U. L. Rev. at 4 (quoting Cahn at 24), the approach applies with equal if not greater force to article I, section 8 of the Iowa Constitution.

B. Dynamic Development of State and Federal Search and Seizure Doctrine.

1. Federal doctrine: Abandonment of warrant-preference approach in favor of open-ended "reasonableness." Over the years, the United States Supreme Court has struggled to develop a coherent body of law under the Fourth Amendment. See generally, e.g. , Coolidge v. New Hampshire , 403 U.S. 443 , 483, 91 S. Ct. 2022 , 2047, 29 L.Ed.2d 564 (1971) (acknowledging lack of consistency and clarity in the Court's Fourth Amendment cases); Amsterdam, 58 Minn. L. Rev. at 349. Particularly after the horrifying search and seizure abuses in Germany before and during World War II, however, the United States Supreme Court increasingly emphasized the role of the Fourth Amendment in cabining the exercise of arbitrary governmental power.

The leading Court historians on search and seizure were Justice Robert Jackson, the chief counsel at Nuremburg, and Justice Felix Frankfurter. See generally Rabinowitz , 339 U.S. at 68 -69 , 70 S. Ct. at 436 (Frankfurter, J., dissenting); Amsterdam, 58 Minn. L. Rev. at 369; Victoria A. Graffeo, Robert H. Jackson: His Years as a Public Servant "Learned in the Law," 68 Albany L. Rev. 539, 546 (2005). Justice Jackson noted,

[T]he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.

United States v. Di Re , 332 U.S. 581 , 595, 68 S. Ct. 222 , 229, 92 L.Ed. 210 (1948). Further, Justice Jackson wrote that search and seizure rights

are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.

Brinegar v. United States , 338 U.S. 160 , 180, 69 S. Ct. 1302 , 1313, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting). Similarly, Justice Frankfurter observed, "The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society." Wolf v. Colorado , 338 U.S. 25 , 27, 69 S. Ct. 1359 , 1361, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio , 367 U.S. 643 , 654-55, 81 S. Ct. 1684 , 1691, 6 L.Ed.2d 1081 (1961). 19

*880 The influence of Justices Jackson and Frankfurter continued after they left the bench. Eventually, the Supreme Court developed an approach to the open-textured language of the Fourth Amendment known as the warrant-preference theory. See generally Cuddihy at 602, 633-37, 734-42 (concluding that the warrant-preference approach was the most consistent with the founders' intentions); Morgan Cloud, Searching Through History; Searching for History , 63 U. Chi. L. Rev. 1707 , 1732-43 (1996) (reviewing Cuddihy) (examining early history); Davies, 98 Mich. L. Rev. at 559 (noting that the Supreme Court for most of the twentieth century embraced a warrant-preference approach). Under the warrant-preference theory, the Supreme Court emphasized the close relationship between the Reasonableness Clause and the Warrant Clause of the Fourth Amendment. Maclin, The Complexity of the Fourth Amendment , 77 B.U. L. Rev. at 928. The touchstone of the Fourth Amendment was the warrant requirement, subject to limited exceptions. Johnson , 333 U.S. at 14 -15 , 68 S. Ct. at 369 ; State v. Ingram , 914 N.W.2d 794 , 804 (Iowa 2018). The warrant-preference approach stresses that ordinarily, in order to be "reasonable" under the Fourth Amendment, a warrant must be obtained prior to the search or seizure. See Maclin, The Complexity of the Fourth Amendment , 77 B.U. L. Rev. at 928 ("[T]he 'warrant preference rule' ... requires that the safeguards of the Warrant Clause define the reasonableness of a given search or seizure.").

In recent years, however, the United States Supreme Court has begun to diminish search and seizure protections. The Court has departed from its earlier precedents grounded in history and recent experience in Europe in favor of a more expansive view of government power. Doctrinally, the Court has generally downgraded the protections of the Warrant Clause by significantly limiting its application and adopting an expansive, modern-day approach to the meaning of the Reasonableness Clause. See Ingram , 914 N.W.2d at 804-06 , 816 ; Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretation of the Fourth Amendment , 27 Am. Crim. L. Rev. 119 , 127, 129-30, 148 (1989). It has now made the new discovery that the "touchstone" of analysis under the Fourth Amendment is no longer the warrant requirement but is "the 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, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio , 392 U.S. 1 , 19, 88 S. Ct. 1868 , 1878-79, 20 L.Ed.2d 889 (1968) ); cf. Ingram , 914 N.W.2d at 815-16 (contrasting the Supreme Court's recent departure from the traditional warrant-preference approach with Iowa's continued maintenance of a warrant preference).

The United States Supreme Court has also undermined the strength of the exclusionary rule. Long ago, Justice Oliver Wendell Holmes declared in Silverthorne Lumber Co. v. United States that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." 251 U.S. 385 , 392, 40 S. Ct. 182 , 183, 64 L.Ed. 319 (1920). Yet in United States v. Leon , the Court found a good-faith exception to the exclusionary *881 rule. 468 U.S. 897 , 913, 104 S. Ct. 3405 , 3415, 82 L.Ed.2d 677 (1984). In contrast to Justice Holmes's approach in Silverthorne Lumber , the Supreme Court in Leon divorced the exclusionary rule from the substantive commands of the Fourth Amendment, noting that no provision of the Fourth Amendment expressly precludes the use of evidence when the provision was violated. Id. at 905-06 , 104 S. Ct. at 3411 . The Leon Court stressed that the exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." Id. at 906 , 104 S. Ct. at 3412 (quoting United States v. Calandra , 414 U.S. 338 , 348, 94 S. Ct. 613 , 620, 38 L.Ed.2d 561 (1974) ). Applying a pragmatic analysis, the Court concluded that the marginal benefits of deterrence would be small where a law enforcement officer acts in objective good faith in a search and seizure context. See id. at 922, 104 S. Ct. at 3420 .

2. Basis for independent state law interpretation of search and seizure provisions. One of the opinions issued today has an affinity for following federal precedent in search and seizure law. My views on the constitutional history and the flaws of following United States Supreme Court precedent in any lockstep or quasi-lockstep way have been thoroughly explored in Short , 851 N.W.2d at 481 -92 , the majority and concurring opinions in Baldon , 829 N.W.2d at 790-91 (majority opinion); id. at 803-34 (Appel, J., specially concurring), and Ochoa , 792 N.W.2d at 264-67 . I highlight only a handful of important points today.

First, the suggestion is advanced that Iowa's constitutional history does not support departing from Fourth Amendment jurisprudence. But at the time of the Iowa constitutional convention, there was very little Fourth Amendment jurisprudence. Most of that came later. What is clear, however, is that the Iowan founding generation had no particular reverence for the decisions of the United States Supreme Court on the important constitutional issues of the day. Indeed, at the time of the Iowa Constitutional Convention of 1857, and for many years prior, the United States Supreme Court was intent on shoring up the institution of chattel slavery through its decisions regarding the Fugitive Slave Act, culminating in the infamous Dred Scott case. See, e.g. , Dred Scott v. Sandford , 60 U.S. (19 How.) 393 , 404, 15 L.Ed. 691 (1857), superseded by constitutional amendment , U.S. Const. amend. XIV.

For example, the fugitive slave decisions were decried at the Iowa constitutional convention in 1857. According to George Ells, the Due Process Clause was "violated again and again by the dominant party in the land, which rides rough-shod oves the necks of freemen." 1 The Debates at 102. And Ells's criticism extended to interpretation of the Due Process Clause in federal courts:

If the words "due process of law," shall in time be recognized by our judicial tribunals to mean what they really do mean, ... [t]hen, sir, that infamous Fugitive Slave Law will become a nullity, and the American people will trample its odious enactments in the dust.

Id. Of course, it was the United States Supreme Court that upheld the Fugitive Slave Act against constitutional attack. See, e.g. , Ableman v. Booth , 62 U.S. (21 How.) 506, 526 , 16 L.Ed. 169 (1858). Ells was not an admirer of the jurisprudence of the United States Supreme Court and was no lockstep guy.

When Dred Scott was rendered, there was an outpouring of scathing criticism of the United States Supreme Court, including a resolution of condemnation from the Iowa legislature. The Iowa legislature declared *882 "the case of Dred Scott, is not binding in law or conscience upon the government or people of the United States." Short , 851 N.W.2d at 484 (quoting 1858 Iowa Acts Res. 12, at 433). Can't find much lockstep here. Further, the resolution stated,

[W]e should be ungrateful to those whose care and foresight provided for us free homes, and derelict in our duty to those who still come after us, did we not promptly and sternly denounce this new doctrine, which if established, degrades the free states.

Id. (quoting 1858 Iowa Acts Res. 12, at 433). If members of this court would have appeared at the Iowa Constitutional Convention of 1857 or the well of the Iowa legislature during the debates about the meaning of Due Process Clause or the Dred Scott matter and advocated the presumptive validity of federal caselaw on the Iowa courts, they would have received glares, not applause.

Although there was not a lot of state search and seizure law in the early days, there is one case that showed Iowa judges were willing to use the Iowa Constitution to protect personal liberty. This is the 1863 Polk County case of Webb v. Griffith. See Nathan E. Coffin, The Case of Archie P. Webb, A Free Negro , 11 Annals of Iowa 200, 211-12 (1913) [hereinafter Coffin]. In the Webb case, an African-American, who had received a certificate of emancipation, was held in the Polk County jail pursuant to Billy Haun's Law, a statute that forbade African-American settlement in Iowa. See id. at 202-03; see also Robert R. Dykstra, Bright Radical Star: Black Freedom and White Supremacy on the Hawkeye Frontier 198-99 (1993). Judge John Gray held that Webb's arrest violated the search and seizure provision of article I, section 8 of the Iowa Constitution. Coffin, 11 Annals of Iowa at 211-12. Judge Gray declared that Webb's arrest was unconstitutional when the only crime charged was that he was a freeman who settled in the state. See id. It is hard to imagine a federal court under the tutelage of the United States Supreme Court coming to a similar conclusion under the Fourth Amendment.

Surely it is clear beyond peradventure that the Iowa founders were devoted to civil liberties. Iowa's state motto-"Our liberties we prize and our rights we will maintain"-is not just a slogan but reflects a libertarian spirit rather than state authoritarianism. The Iowa Constitution includes sweeping language in the inalienable rights clause of article I, section 1 based on the Virginia Declaration of Rights, incorporated by Thomas Jefferson into the Declaration of Independence, but not embraced by Madison in the United States Constitution because of fear such language would provoke controversy with slave states. No such hesitation in Iowa. Indeed, George Ells, Chairman of the Committee on the Preamble and Bill of Rights, stated the committee wanted provisions in the Iowa Bill of Rights that "would enlarge, and not curtail the rights of the people" and would "put upon record every guarantee that could be legitimately placed there in order that Iowa ... might also have the best and most clearly defined Bill of Rights." 1 The Debates at 100. Ells further stated that "the Bill of Rights is of more importance than all the other clauses in the Constitution put together, because it is the foundation and written security upon which the people rest their rights." Id. at 103.

There is reason to think the devotion to civil liberties extended beyond the Iowa constitutional convention. For instance, writing in response to Judge Gray's decision in Webb , the Burlington Hawk-Eye declared, "The people of Iowa will thank Judge Gray for vindicating the charter of *883 their liberties, and throwing the shield of the law over the weak and helpless." Coffin, 11 Annals of Iowa at 214.

Second, on turning to our federal founders, it is worth noting that Madison, among others, looked to the states as the primary source of the protection of civil liberties. See Baldon , 829 N.W.2d at 808 . The very purpose of the federalist system-with sovereignty divided between the states and the federal government-was to allow the states to protect the liberties of the citizen. See id. Indeed, if uniformity was the goal, there would be no states and no state constitutions. The founders' understanding of the role of the states in protecting individual liberties was summarized in Baldon as follows:

Overall, ... the founders looked to the states to protect individual liberties. At the Constitutional Convention, James Wilson observed that the purpose of the states was "to preserve the rights of individuals." Similarly, in Federalist No. 45, Madison stressed that under the Constitution, "The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people...." Madison repeated the liberty theme in Federalist No. 51 by declaring, "In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments .... Hence, a double security arises to the rights of the people."

829 N.W.2d at 808 (first quoting I Records of the Federal Convention of 1787 , at 356 (Max Farrand ed., 1937); and then quoting The Federalist No. 45 , at 236 (James Madison) (Garry Wills ed., 1982); and then quoting The Federalist No. 51 , at 264 (James Madison) (Garry Wills ed., 1982)). But "[i]f we choose to follow federal precedent to bolster nationwide conformity, we destroy the 'double security' designed to protect our citizens." Stanley G. Feldman & David L. Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution , 20 Ariz. St. L.J. 115 , 117 (1988) (quoting Alderwood Assocs. v. Wash. Envtl. Council , 96 Wash.2d 230 , 635 P.2d 108 , 113 (Wash. 1981) (en banc)).

Or, as has been noted by Chief Justice Cady,

Our Iowa Constitution, like other state constitutions, was designed to be the primary defense for individual rights, with the United States Constitution Bill of Rights serving only as a second layer of protection, especially considering the latter applied only to actions by the federal government for most of our country's history.

Mark S. Cady, A Pioneer's Constitution: How Iowa's Constitutional History Uniquely Shapes Our Pioneering Tradition in Recognizing Civil Rights and Civil Liberties , 60 Drake L. Rev. 1133 , 1145 (2012). It would be ironic, and tragic, if this court surrenders its historically appointed role as a protector of liberty and hands over the liberty keys to the United States Supreme Court under some kind of ahistorical reverse federalism.

Third, the mere fact that the language of article I, section 8 and the Fourth Amendment are similar does not mean that this court must bow to federal interpretations of the Fourth Amendment in interpreting our state constitutional counterpart. It is, of course, true that the language of article I, section 8 and the Fourth Amendment are very similar. And this court has sometimes said that because of the similarity of language, the provisions are "deemed to be identical in scope, import, and purpose." State v. Groff , 323 N.W.2d 204 , 207 (Iowa 1982).

*884 But the conclusory bromide is stating the obvious at a very high degree of generality and has very little value, or even no value, in deciding cases. Ochoa , 792 N.W.2d at 267 (noting the general language similarity does nothing to aid us in deciding concrete cases); see also Richard M. Re, Essay, Narrowing Precedent in the Supreme Court , 114 Colum. L. Rev. 1861 , 1875-89 (2014) (arguing that healthy stare decisis can require methods of narrowing broadly stated precedent in order to avoid overruling a case when its "best reading," i.e. the precedent as actually stated, would require an outcome inconsistent with other legal principles). The purpose of both provisions is to limit arbitrary conduct of law enforcement, to generally require warrants, and to protect the rights of persons to be secure in their persons, houses, papers, and effects. Yet we have stated, for example, that when it comes to the exclusionary rule, article I, section 8 serves different purposes than the Fourth Amendment. State v. Cline , 617 N.W.2d 277 , 289-93 (Iowa 2000) (en banc), abrogated on other grounds by State v. Turner , 630 N.W.2d 601 , 606 n.2 (Iowa 2001). In contrast to the federal exclusionary rule, the purposes of the exclusionary rule under article I, section 8 include protecting constitutional rights and maintaining the integrity of the courts as well as deterrence. Id.

Indeed, on a wide range of search and seizure issues, a variety of options are plausible under the open-textured language. Due to the marvels of electronic research, there is a cornucopia of caselaw waiting to be harvested by thoughtful judges looking to make the best possible choices under their state constitutions. This court is not in any way bound by federal precedent, or for that matter, the precedent of any other jurisdiction. Instead, we make our own independent choices under the Iowa Constitution. Pals , 805 N.W.2d at 771 (endorsing the principle that United States Supreme Court opinions provide guidance only based upon their persuasive power); see Baldon , 829 N.W.2d at 790-91 (majority opinion) (same); see also State v. James , 393 N.W.2d 465 , 468 (Iowa 1986) (en banc) (Lavorato, J., dissenting) ("We push aside our constitutional responsibilities when we merely look to the Supreme Court for answers in examining the state constitution.").

A highly regarded jurist has nailed it in a recent piece of scholarship. According to Judge Sutton of the United States Court of Appeals for the Seventh Circuit,

There is no reason to think, as an interpretive matter, that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed the same. Still less is there reason to think that a highly generalized guarantee, such as a prohibition on "unreasonable" searches, would have just one meaning for a range of differently situated sovereigns.

Sutton, 59 U. Kan. L. Rev. at 707.

Judge Sutton's observations are consistent with what happens on the ground in many states. There are thousands, not hundreds, of state search and seizure cases following a path independent of federal courts under state constitutional provisions similar to the Fourth Amendment. See Michael J. Gorman, Survey: State Search and Seizure Analogs , 77 Miss. L.J. 417 , 418-64 (2007) (citing search and seizure departures in almost three dozen states as of 2007).

In the past, some of our cases utilized what is called a lockstep approach or lockstep-lite approach where federal law was either followed as a matter of course or presumptively followed. We abandoned *885 that approach in Ochoa , 792 N.W.2d at 267 . In Ochoa , we unanimously declared,

In order to resolve any inconsistency in our prior cases [following the lockstep or quasi-lockstep approach], we now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions. A Fourth Amendment opinion of the United States Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no more binding upon our interpretation of article I, section 8 of the Iowa Constitution than is a case decided by another state supreme court under a search and seizure provision of that state's constitution. The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision. When both federal and state constitutional claims are raised, we may, in our discretion, choose to consider either claim first in order to dispose of the case, or we may consider both claims simultaneously.

Id. In short, we rejected the recently discovered and historically strange doctrine of constitutional nationalism and, instead, declared our allegiance to the vertical distribution of power in a federalist system just as the federal framers intended.

Under Ochoa and subsequent cases, it is true, as suggested in one of the court's opinions today, divergence from federal authority is not required or even favored. Fair enough. But what is required is our best independent judgment by each and every one of us whose privilege it is to serve on this court. No one would suggest that a legislator or a governor should defer to Washington politicians. Why should a state court defer to the United States Supreme Court if the precedent is unpersuasive? Indeed, the United States Supreme Court has declared that "[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions." Minnesota v. Nat'l Tea Co. , 309 U.S. 551 , 557, 60 S. Ct. 676 , 679, 84 L.Ed. 920 (1940). We lose our way when we fail to embrace and apply this fundamental independence from federal law.

Fourth, it is true that our cases have departed from past precedents. But there was a good reason for that. In the past, as noted in Ochoa , we tended to follow federal precedent without much thought. 792 N.W.2d at 266 . We were often a lockstep-lite jurisdiction, theoretically reserving the right to engage in independent constitutional analysis but rarely bothering to do so. See id. That approach was, and is, unacceptable. We should decide state constitutional issues based on our best judgment of the proper course, based upon all available authorities and precedents. A prior case that simply pasted a federal approach into the North Western Reporter without further thought is a very slender reed and not entitled to stare decisis.

An opinion in this case suggests that our search and seizure cases under the Iowa Constitution are generally interpreted to mirror federal law. I beg to differ. It is clear that our caselaw, like that of many states, no longer generally interprets the Iowa Constitution to mirror federal caselaw in the search and seizure area. See, e.g. , Ingram , 914 N.W.2d at 799 ; State v. Coleman , 890 N.W.2d 284 , 299 (Iowa 2017) ; Gaskins , 866 N.W.2d at 6-7 ; Short , 851 N.W.2d at 482-85 ; Baldon , 829 N.W.2d at 792 -97 , 802-03 ; Pals , 805 N.W.2d at 771 ; Ochoa , 792 N.W.2d at 291 ; Cline , 617 N.W.2d at 293 . Instead of using a mirror, in recent years we have exercised our independent judgment in determining independent state constitutional *886 claims involving search and seizure. That is the teaching of Ochoa , 792 N.W.2d at 267 (explaining that the degree to which we follow federal or other precedents depends upon their persuasive power).

And we recently have not used mirrors in other constitutional contexts. In Puntenney v. Iowa Utilities Board , 928 N.W.2d. 829 , 855 (Iowa 2019), we departed from United States Supreme Court precedent in an eminent domain case. In Baldwin , 915 N.W.2d at 281 (majority opinion), we developed our own independent approach to immunity for state constitutional tort claims. And in Varnum v. Brien , 763 N.W.2d 862 , 872, 878 n.6 (Iowa 2009), we exercised our independent judgment under the Iowa Constitution with respect to same-sex marriage. Our recent cases do not emphasize using a mirror for mirror's sake but instead emphasize that we "jealously" protect our authority to follow an independent approach. State v. Fleming , 790 N.W.2d 560 , 564 (Iowa 2010) ; Zaber v. City of Dubuque , 789 N.W.2d 634 , 654 (Iowa 2010) ; State v. Bruegger , 773 N.W.2d 862 , 883 (Iowa 2009) ; Racing Ass'n of Cent. Iowa v. Fitzgerald , 675 N.W.2d 1 , 6-7 (Iowa 2004).

Fifth, it must be acknowledged that the decisions of the United States Supreme Court on individual liberties involve a federalist discount. The most conservative justice of the Warren court, Justice John Marshall Harlan, repeatedly cautioned that application of the Bill of Rights to the states would lead to a dilution in the scope of federal rights. Justice Harlan saw "a major danger of the 'incorporation' approach-that provisions of the Bill of Rights may be watered down in the needless pursuit of uniformity." Duncan v. Louisiana , 391 U.S. 145 , 182 n.21, 88 S. Ct. 1444 , 1466 n.21, 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting). In a draft opinion not published because of his untimely death, Justice Harlan wrote that incorporation " 'threaten[ed] ... to "chill" the Sixth Amendment out of existence' and 'might well spell the demise-under the inescapable pressures of federalism-of many other provisions of the Bill of Rights.' " Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court 291 (1992) (alterations in original) (quoting John Marshall Harlan, Draft Opinion to Apodaca v. Oregon , 406 U.S. 404 , 92 S. Ct. 1628 , 32 L.Ed.2d 184 (1972), and Johnson v. Louisiana , 406 U.S. 356 , 92 S. Ct. 1620 , 32 L.Ed.2d 152 (1972) (on file in the John Marshall Harlan Papers, Secley G. Mudd Manuscript Library, Princeton University, Box 441)).

Justice Harlan, of course, time and time again, has been proven correct. When looking to United States Supreme Court precedent, it is imperative we understand that its approach to individual rights is discounted from constitutional norms in light of federalism concerns. Indeed, in the search and seizure areas since incorporation, the United States Supreme Court has persistently cut back on substantive protections while repeatedly emphasizing the ability of the states to expand the constitutional protections under their state constitutions. See, e.g. , California v. Greenwood , 486 U.S. 35 , 41-44, 108 S. Ct. 1625 , 1629-31, 100 L.Ed.2d 30 (1988) ; Michigan v. Mosley , 423 U.S. 96 , 120, 96 S. Ct. 321 , 334, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting); Oregon v. Hass , 420 U.S. 714 , 719, 95 S. Ct. 1215 , 1219, 43 L.Ed.2d 570 (1975) ; Cooper v. California , 386 U.S. 58 , 62, 87 S. Ct. 788 , 791, 17 L.Ed.2d 730 (1967).

Sixth, it must be acknowledged that the current United States Supreme Court is a rights-restricting court. Ever since Brown v. Board of Education of Topeka , 347 U.S. 483 , 74 S. Ct. 686 , 98 L.Ed. 873 (1954), and the Southern Manifesto, political actors *887 have sought to move the Supreme Court in a conservative direction that reduces the role of the courts in the protection of civil liberties. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470 , 1489 (2004). Southern strategies have been employed and litmus tests applied. Nominees to the high court have been made, withdrawn, hung up without a hearing, and narrowly confirmed.

In the end, there has been what nearly all observers agree is a significant shift in the Supreme Court's jurisprudence. And time and time again, the Court, often over strong objections of dissenters, has whittled away at the scope of individual liberties using innovative contemporary documents to extend state authority. See, e.g. , Samson v. California , 547 U.S. 843 , 846, 126 S. Ct. 2193 , 2196, 165 L.Ed.2d 250 (2006) (permitting warrantless search of parolee); Atwater v. City of Lago Vista , 532 U.S. 318 , 323, 354, 121 S. Ct. 1536 , 1541, 1557, 149 L.Ed.2d 549 (2001) (permitting warrantless arrest and jailing for misdemeanor violation when sanction does not include jail time); Ohio v. Robinette , 519 U.S. 33 , 35, 117 S. Ct. 417 , 419, 136 L.Ed.2d 347 (1996) (holding that police need not tell driver he or she is "free to go" to obtain consent to search); Colorado v. Bertine , 479 U.S. 367 , 371, 107 S. Ct. 738 , 741, 93 L.Ed.2d 739 (1987) (allowing warrantless inventory searches of automobiles); Leon , 468 U.S. at 920 -25 , 104 S. Ct. at 3420-22 (embracing good-faith exception to exclusionary rule); Schneckloth v. Bustamonte , 412 U.S. 218 , 235-41, 93 S. Ct. 2041 , 2051-55, 36 L.Ed.2d 854 (1973) (abandoning knowing-and-voluntary test for consent to search). Frankly, I have very little interest in importing whole hog to Iowa the approach adopted by the Supreme Court in Washington, D.C. Not only should we not incorporate the federal cases, there should be no presumption, or special weight, given to the Supreme Court's precedents. We should think for ourselves.

That said, I agree with Justice McDonald that there should be no artificial presumption that the Iowa Constitution is more protective than federal caselaw in any given case. Instead, we should independently examine each case, free from any predisposition, and engage in a thorough review of plausible legal options without any artificial doctrines that block independent thinking. In light of Justice McDonald's opinion, it is clear that a majority of this court continues to embrace this approach.

3. Iowa search and seizure: Embracing the warrant-preference approach and the constitutional underpinnings of the exclusionary rule. Our search and seizure law has followed a different path than that of the United States Supreme Court. Early on, we emphasized that the Iowa Constitution's protections against unconstitutionally obtained evidence were to apply "in a broad and liberal" spirit. State v. Height , 117 Iowa 650 , 654-65, 91 N.W. 935 , 936-40 (1902) (quoting People ex rel. Taylor v. Forbes , 143 N.Y. 219 , 38 N.E. 303 , 305 (N.Y. 1894) ). We also recognized the ability of this court to interpret our search and seizure provision independently of federal interpretations of the United States Constitution. State v. Tonn , 195 Iowa 94 , 104-08, 191 N.W. 530 , 535-36 (1923), abrogated on other grounds by State v. Hagen , 258 Iowa 196 , 203-05, 137 N.W.2d 895 , 899-900 (1965), as recognized in State v. Taylor , 260 Iowa 634 , 641-42, 144 N.W.2d 289 , 293-94 (1966).

But, noted in Ochoa , we have at times simply adopted decisions of the United States Supreme Court without analysis. 792 N.W.2d at 265-66 . In Cline , however, *888 we departed from the lockstep approach by emphasizing that "[i]f precedent is to have any value it must be based on a convincing rationale." 617 N.W.2d at 285 (quoting James , 393 N.W.2d at 472 ). In Ochoa , we stated, "The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision." 792 N.W.2d at 267 . While we recognized that in the past we have been inconsistent in our willingness to engage in independent state constitutional interpretation, we held in Ochoa ,

In order to resolve any inconsistency in our prior cases, we now hold that, while United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions.

Id. ; see also Short , 851 N.W.2d at 481-92 (outlining principles of independent state constitutional jurisprudence).

Under our current caselaw, we have departed from the United States Supreme Court in two fundamental ways. First, as noted in Ingram , our recent cases have embraced a strong warrant-preference interpretation of article I, section 8. 914 N.W.2d at 816 ; see 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) )); Short , 851 N.W.2d at 502 ("[W]e have little interest in allowing the reasonableness clause to be a generalized trump card to override the warrant clause in the context of home searches and reject the cases suggesting otherwise."); Baldon , 829 N.W.2d at 791 ("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."). Our approach does not mean that warrantless searches are always invalid, particularly when it is impractical to obtain a warrant and an exigency is present, but it insists that a warrant based on probable cause issued by a neutral magistrate is required in most circumstances and that exceptions to the warrant requirement be narrowly construed. See, e.g. , Ochoa , 792 N.W.2d at 285 ("[W]arrantless searches and seizures that d[o] not fall within one of the 'jealously and carefully drawn exceptions' are unreasonable." (quoting State v. Strong , 493 N.W.2d 834 , 836 (Iowa 1992) )); State v. McGrane , 733 N.W.2d 671 , 677 (Iowa 2007) ("The search-incident-to-arrest exception to the warrant requirement must be narrowly construed and limited to accommodating only those interests it was created to serve.").

Second, in Cline , we rejected the narrow, pragmatic approach of Leon , which viewed the exclusionary rule as simply a judicially created remedy. 617 N.W.2d at 293 ; see Leon , 468 U.S. at 906 , 104 S. Ct. at 3412 . We emphasized that Iowa was one of the first states to exclude evidence "as an integral part of its state constitution's protection against unreasonable searches and seizures." Cline , 617 N.W.2d at 285 . We noted that the United States Supreme Court originally took a similar position in cases such as Weeks v. United States , 232 U.S. 383 , 398, 34 S. Ct. 341 , 346, 58 L.Ed. 652 (1914), overruled on other grounds by Mapp , 367 U.S. at 654 -57 , 81 S. Ct. at 1691 -92 . Cline , 617 N.W.2d at 283 , 285 . We also noted that the United States Supreme Court had recently distanced itself from its early cases. Id. at 284 . We declined to drift away from what we viewed as the substantive constitutional protections afforded by the exclusionary rule. Id. at 292-93 .

*889 In support of our position in Cline , we quoted the familiar language of Height , which declared that the "guaranty [of article I, section 8 of the Iowa Constitution ] ... has ... received a broad and liberal interpretation for the purpose of preserving the spirit of constitutional liberty." Id. at 285 (quoting Height , 117 Iowa at 661 , 91 N.W. at 938 ). We further quoted with approval language from State v. Sheridan , where we noted that to hold evidence obtained in violation of article I, section 8 could be admitted would "emasculate the constitutional guaranty, and deprive it of all beneficial force or effect." Id. at 286 (emphasis omitted) (quoting State v. Sheridan , 121 Iowa 164 , 168, 96 N.W. 730 , 731 (1903) ). We rejected the United States Supreme Court's view that the purpose of the exclusionary rule was to deter misconduct, noting that the exclusionary rule was originally justified as a remedy for constitutional violations and to preserve judicial integrity. Id. at 289 .

Cline thus represents a substantial departure from United States Supreme Court precedent in the interpretation of constitutional search and seizure provisions. It rejected pragmatic calculations of the Court and recognized the exclusion of unconstitutionally obtained evidence in "preserving the spirit of constitutional liberty." Id. at 285 (quoting Height , 117 Iowa at 661 , 91 N.W. at 938 ). Cline is thus consistent with the skeptical attitude toward government power embraced by the generations that adopted the Fourth Amendment and article I, section 8 of the Iowa Constitution.

Because of our insistence on emphasizing the preference for warrants under article I, section 8 and our conclusion that the substantive search and seizure provisions of the Iowa Constitution require the exclusion of evidence obtained in violation of the constitutional commands, our Iowa framework for search and seizure questions is different from the more recent innovations introduced by the United States Supreme Court in its search and seizure cases.

C. Application of Search and Seizure Doctrine to Automobiles.

1. Federal approach: Shrinking protection. With the advent of the automobile, questions arose regarding the application of search and seizure protections to vehicles on public highways. In Carroll v. United States , 267 U.S. 132 , 134-36, 45 S. Ct. 280 , 281, 69 L.Ed. 543 (1925), government agents engaged in a warrantless search and seizure of an automobile believed to be engaged in illegal bootlegging. The Carroll Court compared an automobile to a vessel at sea, concluding that it would be impracticable to obtain a warrant in light of the mobile character of the vehicle. Id. at 151-53 , 45 S. Ct. at 284 -85 . The Carroll Court recognized that "[i]t would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor." Id. at 153-54 , 45 S. Ct. at 285 . The Carroll Court reasoned, however, that if there was probable cause that the vehicle was "carrying contraband or illegal merchandise," the stop would be lawful even without a warrant. Id. at 154 , 45 S. Ct. at 285 .

In a sharp dissent in Carroll , Justice McReynolds found that only mere suspicion and not probable cause supported the warrantless action of the government agents in the case. Id. at 163 , 45 S. Ct. at 289 (McReynolds, J., dissenting). He observed that "[t]he damnable character of the 'bootlegger's' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods." Id. at 163 , 45 S. Ct. at 288 . In short, for Justice McReynolds, the important ends demanded by current exigency *890 did not justify the use of unconstitutional means.

Almost fifty years later, the Supreme Court decided Chambers v. Maroney , 399 U.S. 42 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970). In Chambers , the Court considered whether a Fourth Amendment violation arose when an automobile was thoroughly searched after it was taken to the police station. Id. at 43 , 90 S. Ct. at 1977 . The Chambers Court ruled that because there was probable cause to support a warrantless search at the time the vehicle was stopped, that probable cause also supported the subsequent warrantless search of the vehicle even though the automobile, at that point, was no longer mobile. Id. at 52 , 90 S. Ct. at 1981 -82 . Permitting a warrantless search of a seized automobile was a striking development because the basis of the automobile exception in Carroll was the mobility of the vehicle. See Carroll , 267 U.S. at 153 , 45 S. Ct. at 285 (majority opinion).

Yet the Supreme Court has also at times expressed concern about search and seizure involving automobiles. For example, Justice Jackson declared, "I am convinced that there are, many unlawful searches of ... automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." Brinegar , 338 U.S. at 181 , 69 S. Ct. at 1313 . In this observation, Justice Jackson recognized that the real beneficiary of enforcement of the Fourth Amendment is not the guilty party before the court but rather the innocent public generally, which the Fourth Amendment protects from arbitrary search and seizure. In addition, the Supreme Court has emphasized that "[t]he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge , 403 U.S. at 461 , 91 S. Ct. at 2035 .

And the Supreme Court concluded that a traffic stop, even for a brief period, constitutes a seizure. Delaware v. Prouse , 440 U.S. 648 , 653, 99 S. Ct. 1391 , 1396, 59 L.Ed.2d 660 (1979). In Prouse , the Court considered the constitutionality of a random stop when there was no reasonable suspicion that any violation occurred. Id. at 650 , 99 S. Ct. at 1394 . The Prouse Court noted that an automobile stop is not a minor inconvenience, stressing that the automobile is one of the most visible symbols of our liberty. See id. at 657, 662 , 99 S. Ct. at 1398, 1400-01 . According to the Prouse Court, "[P]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks" or "from the sidewalks into their automobiles." Id. at 663 , 99 S. Ct. at 1401 . The Supreme Court held the "kind of standardless and unconstrained discretion" presented in the case is not permitted under the Fourth Amendment. Id. at 661 , 99 S. Ct. at 1400 .

Beginning in the mid-1970s, however, the Supreme Court embarked on an aggressive course designed to trim back more robust search and seizure protections of automobiles. In a series of cases, the Supreme Court held that the warrant requirement of the Fourth Amendment did not apply to automobiles in a variety of settings. See, e.g. , Mich. Dep't of State Police v. Sitz , 496 U.S. 444 , 447, 110 S. Ct. 2481 , 2483, 110 L.Ed.2d 412 (1990) ; Bertine , 479 U.S. at 368 -69 , 107 S. Ct. at 739-40 ; South Dakota v. Opperman , 428 U.S. 364 , 375-76, 96 S. Ct. 3092 , 3100, 49 L.Ed.2d 1000 (1976).

These cases established an important backdrop to the Whren Court's rejection of control of pretextual stops. 517 U.S. at 819 , 116 S. Ct. at 1777 . When a warrant is obtained, of course, the state must make a particularized showing of probable cause and the purpose and scope of a search is *891 limited by the magistrate. A warrantless search, however, contains no such restraints. The combination of the lack of a warrant requirement in the automobile context and the tolerance of pretextual searches in Whren presents a clear path for unregulated, arbitrary police conduct.

And developments in Supreme Court caselaw after Whren further increased the dangers of unregulated police searches and seizures involving automobiles. In the case of Atwater , 532 U.S. at 323 , 354 , 121 S. Ct. at 1541 , 1557 , the Supreme Court held that a driver of an automobile could be subject to a full custodial arrest for a minor traffic infraction even if incarceration was not a permissible sanction for the offense. Thus, the driver of a vehicle stopped pretextually for a minor traffic offense is, according to the Atwater majority, subject to a full custodial arrest and the resulting impoundment of the vehicle even if the sanctions for the minor traffic violation do not include incarceration. Id. That impoundment, in turn, could be the basis for a warrantless search at the police station. See Chambers , 399 U.S. at 52 , 90 S. Ct. at 1981 -82 . The end result of the confluence of these United States Supreme Court cases is that persons pretextually stopped for minor traffic violations may be subject to a full custodial arrest, an impounded vehicle, and a warrantless search of the impounded vehicle without offending the Fourth Amendment.

And there is one more twist. In Heien v. North Carolina , 574 U.S. 54 , ----, 135 S. Ct. 530 , 534, 190 L.Ed.2d 475 (2014), the Supreme Court held that an officer's mistake of law can still provide sufficient reasonable suspicion to engage in a warrantless stop if the mistake is reasonable. Thus, the officer's stop of a vehicle with one brake light out did not violate the Fourth Amendment even though the underlying regulation required only a single working brake light. Id. As a result, under the Supreme Court cases, a warrantless pretextual stop based upon a mistaken belief that a minor traffic law was violated may lead to a full custodial arrest, subsequent impoundment of the vehicle, and a warrantless search of the vehicle without offending the Fourth Amendment.

2. Approaches under state law: Independence. The Supreme Court's determination to cut back on robust interpretation of search and seizure law under the Fourth Amendment was not universally admired in state courts. Indeed, on several notable occasions, when the United States Supreme Court reversed state supreme court rulings providing Fourth Amendment protection in the context of automobiles, the state supreme courts on remand followed their prior approaches on state constitutional grounds. For instance, after the United States Supreme Court upheld a roadblock-type seizure in Sitz , 496 U.S. at 447 , 110 S. Ct. at 2483 , the Michigan Supreme Court on remand declined to follow the Supreme Court in its interpretation of the Michigan Constitution. See Sitz v. Dep't of State Police , 443 Mich. 744 , 506 N.W.2d 209 , 224-25 (Mich. 1993). Similarly, the South Dakota Supreme Court declined to follow the lead of the United States Supreme Court on remand after Opperman , 428 U.S. at 375 -76 , 96 S. Ct. at 3100 , where the Court upheld a warrantless inventory search. State v. Opperman , 247 N.W.2d 673 , 674-75 (S.D. 1976).

There are many other occasions where state supreme courts have declined to follow federal precedents in the interpretation of state constitutions. For example, the New Hampshire Supreme Court rejected the automobile exception in State v. Sterndale , 139 N.H. 445 , 656 A.2d 409 , 411-12 (N.H. 1995), abrogated in part on other grounds by State v. Goss , 150 N.H. 46 , 834 A.2d 316 , 318-19 (N.H. 2003), as *892 recognized in State v. Cora , 170 N.H. 186 , 167 A.3d 633 , 641-42 (N.H. 2017), the Minnesota Supreme Court rejected Atwater in State v. Askerooth , 681 N.W.2d 353 , 361-63 (Minn. 2004) (en banc), the New Jersey Supreme Court rejected application of Schneckloth to an automobile stop in State v. Carty , 170 N.J. 632 , 790 A.2d 903 , 907, 912-14, modified on other grounds , 174 N.J. 351 , 806 A.2d 798 , 798 (N.J. 2002), and the Alaska Supreme Court imposed greater limitations on inventory searches in State v. Daniel , 589 P.2d 408 , 416 (Alaska 1979).

3. Iowa approach: Resilience. In recent years, we have been increasingly concerned with the expansive reach of federal law in the search and seizure of automobiles. We have limited the reach of government power in the automobile context in a series of cases by relying on article I, section 8 of the Iowa Constitution. Thus, while the United States Supreme Court has trimmed back its search and seizure protections in the automobile context, we have generally held firm.

For instance, in State v. Tague , 676 N.W.2d 197 , 205-06 (Iowa 2004), we confronted the question of whether an automobile stop may be based upon momentarily crossing the edge line of a road. We held that on the facts presented, the police lacked probable cause or reasonable suspicion to stop the vehicle. Id. Notably, we based our decision on article I, section 8 of the Iowa Constitution and not on the Fourth Amendment. Id. at 206 .

A few years later, in Vance , 790 N.W.2d at 786 , we considered whether counsel was ineffective for failure to consider whether the holding in New York v. Belton , 453 U.S. 454 , 460-61, 101 S. Ct. 2860 , 2864, 69 L.Ed.2d 768 (1981), overruled in part by Arizona v. Gant , 556 U.S. 332 , 350-51, 129 S. Ct. 1710 , 1723, 173 L.Ed.2d 485 (2009), remained good law under the Iowa Constitution. The thrust of our Vance opinion strongly suggested that it would be ineffective assistance to not launch an independent challenge under article I, section 8 of the Iowa Constitution. 790 N.W.2d at 789-90. But because it was possible that counsel did not raise the issue of Belton 's vitality under the Iowa Constitution because of a reasonable belief that another exception to the warrant requirement might be present, we denied relief on direct appeal. Id. at 790.

Next, in Pals , 805 N.W.2d at 770 -71 , we explored the validity of a consent search in the context of an automobile stop under article I, section 8 of the Iowa Constitution. At the outset, we observed that the proper scope of police authority in cases involving minor traffic infractions had been the subject of controversy. Id. at 772 . We specifically noted claims of racial profiling and that a number of consent decrees had been entered to provide a framework for limiting the exercise of police authority in traffic stops. Id. at 772-73 & nn.2-9. We noted that at least one Iowa jurisdiction had entered into a consent decree related to alleged racial profiling in traffic stops. Id. at 773 & n.9.

In Pals , we also noted criticism of the Schneckloth test for consent both because of its failure to require a knowing and voluntary waiver of rights and in the lack of stringent application. Id. at 779-82 . In Pals , we reserved for another day the question of whether Iowa should require knowing and voluntary waiver of constitutional rights in the context of automobile searches. Id. at 782 . Instead, we applied the multi-factored Schneckloth test in a stringent fashion, emphasizing that the officer in the case had exercised authority over the driver through a pat-down search, that Pals was detained in the police vehicle at the time of consent, that Pals was not told he was free to leave or that he could *893 voluntarily refuse consent without any retaliation by police, and that he was not advised that police had concluded their business. Id. at 782-83 . We held that the consent in the case was invalid under article I, section 8 of the Iowa Constitution. Id. at 783 .

In State v. Tyler , 830 N.W.2d 288 , 293-96 (Iowa 2013), we considered whether a search could be valid where the officer made a mistake of law in believing he had probable cause to seize a vehicle. We held that when a mistake of law was the sole justification of the stop, the evidence gathered pursuant to the stop was invalid. Id. at 294, 296, 298 .

In Tyler , we came to our approach under both the Iowa and Federal Constitutions. Id. at 298 . The United States Supreme Court has since held that suppression is not required if a stop is made for a reasonable mistake of law. Heien , 574 U.S. at ----, 135 S. Ct. at 534 . While the Supreme Court has declined to follow the approach in Tyler under the Fourth Amendment, the holding of Tyler under article I, section 8 of the Iowa Constitution remains good law. Coleman , 890 N.W.2d at 298 n.2 ("Of course, the ruling in Tyler under the Iowa Constitution is unaffected by Heien ."). Although the Tyler case had discriminatory overtones of race and place, it was not necessary to address any issue of pretext. 830 N.W.2d at 297 & n.4 ; see I. Bennett Capers, Policing, Race, and Place , 44 Harv. C.R.-C.L. L. Rev. 43 , 65-66 (2009) (noting policing may depend upon whether members of a race are deemed to be in the right place).

Our next recent automobile case is Gaskins , 866 N.W.2d 1 . In Gaskins , we considered the scope of a search incident to arrest in the context of an automobile stop for an expired license plate. Id. at 3 . After the stop, police smelled marijuana and confiscated a marijuana blunt from the motorist. Id. The motorist and a passenger were arrested and placed in a police car. Id. Police then searched a safe in the car without first obtaining a warrant. Id.

We concluded that the search of the safe was not a valid search incident to arrest. Id. In doing so, we considered whether to continue following the approach of the United States Supreme Court in Belton , 453 U.S. 454 , 101 S. Ct. 2860 , 69 L.Ed.2d 768 . Gaskins , 866 N.W.2d at 8 -10 . In Belton , the Supreme Court ruled that once the driver of an automobile was arrested, police could engage in a warrantless search of the entire passenger compartment of the vehicle, including searching any containers found within the passenger compartment, without violating the Fourth Amendment. See 453 U.S. at 460 , 101 S. Ct. at 2864 . Belton thus stood for the doubtful proposition that a search of the interior compartment of an automobile was justified as a search incident to arrest even though the driver and passengers were not physically capable of retrieving a weapon or destroying contraband or evidence.

In Gaskins , we chose to reject the Belton approach under the Iowa Constitution. 866 N.W.2d at 12 . We noted, among other things, that Belton had been subject to searing criticism, citing courts and scholars who declared that "[t]he drumbeat of scholarly opposition to Belton has remained constant," that "[t]here is good reason to be critical of the Court's work in Belton ," and that "[c]riticism of Belton has been vigorous and sustained." Id. at 9 (first quoting State v. Eckel , 185 N.J. 523 , 888 A.2d 1266 , 1272-73 (N.J. 2006) ; and then quoting Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U. Pitt. L. Rev. 307 , 332 (1982) ; and then quoting Eugene L. Shapiro, *894 New York v. Belton and State Constitutional Doctrine , 105 W. Va. L. Rev. 131 , 137 (2002) ). We also noted that members of the United States Supreme Court after Belton had expressed reservations about its scope and that the Supreme Court itself had limited Belton 's reach. Id. at 9-10 ; see Gant , 556 U.S. at 350 -51 , 129 S. Ct. at 1723-24 ; Thornton v. United States , 541 U.S. 615 , 624, 124 S. Ct. 2127 , 2133, 158 L.Ed.2d 905 (2004) (O'Connor, J., concurring in part); id. at 626-29 , 124 S. Ct. at 2134-35 (Scalia, J., concurring in the judgment).

In analyzing the case, we recognized that we had adopted Belton in a lockstep fashion in State v. Sanders , 312 N.W.2d 534 , 539 (Iowa 1981). See Gaskins , 866 N.W.2d at 9 . We noted, however, that New Jersey, Washington, New Hampshire, and other states had declined to adopt Belton under their state constitutions. Id. at 11-12 . After canvassing the authorities, we concluded that we could no longer follow Belton . Id. at 12 . We reasoned that when the driver and the passenger were secured in the police car, nothing within the vehicle posed a threat to the officers and there was no possibility that the driver and passenger could destroy evidence in the backseat of the vehicle. Id. at 14 . In short, the scope of the Belton rule far exceeded its justification under the facts presented in Gaskins . See id. at 14 . We overruled Sanders as we no longer believed Belton provided the proper scope of searches incident to arrest under article I, section 8 of the Iowa Constitution. Id. at 16 .

We returned to another automobile search in Coleman , 890 N.W.2d at 285 . In Coleman , we considered whether an automobile stop could be extended to require production of a driver's license or registration after the underlying basis for the stop had been resolved. Id. After surveying federal and state court authorities, we concluded that under article I, section 8 of the Iowa Constitution, the traffic stop could not be extended so that the officer could request papers from the driver after the original basis for the stop had been resolved. Id. at 299-301 . We emphasized that "cabining official discretion to conduct searches is designed to prevent arbitrary use of police power." Id. at 299 . We noted that our recent cases "evinced an awareness of the potential for arbitrary government action on the state's roads and highways." Id. at 300 . We noted that in Pals and Tyler , "we put traffic stops in the larger context of concerns surrounding racial profiling." Id.

In State v. Storm , 898 N.W.2d 140 , 141 (Iowa 2017), we considered whether it was time to do away entirely with the automobile exception to the warrant requirement. Although three members of the court were prepared to abandon the rule, see id. at 157-58 (Hecht, J., dissenting) (joined by Justices Wiggins and Appel), a majority of the court declined to do so, id. at 142 (majority opinion).

In his special concurrence, however, Chief Justice Cady emphasized that on the record developed in the case, the defendant had not shown that technological developments rendered the automobile exception obsolete. Id. at 157 (Cady, C.J., concurring specially). Thus, Chief Justice Cady regarded the result as fact intensive and implied that when adequate technology is available, a warrant may be required to support a search of an automobile. Id. Chief Justice Cady stated that he remained "convinced the automobile exception has a limited lifespan" but concluded that its longevity depended on the ability of the state to integrate and use technological developments that would make the categorical rule unreasonable. Id.

Last, we considered the proper approach to warrantless inventory searches *895 pursuant to automobile stops in Ingram , 914 N.W.2d at 797 . In Ingram , we used a method of analysis similar to that in Gaskins , exploring the validity of the stated rationale for warrantless inventory searches and canvassing applicable state and federal authorities. See id. at 801-12. We observed, among other things, that the Supreme Court's approach to warrantless inventory search and seizure caselaw was highly contested. Id. at 805. Yet we recognized that thirty-five years before Ingram , we held in State v. Roth , 305 N.W.2d 501 , 507-08 (Iowa 1981) (en banc), that a closed container-such as a paper bag, but not a purse, suitcase, or briefcase-could be opened as part of an inventory search of a seized automobile. Ingram , 914 N.W.2d at 813 . The container in Ingram involved a bag with a drawstring. See id. at 798 .

Nonetheless, we concluded in Ingram that the time had come to depart from federal precedent in our inventory search doctrine under article I, section 8 of the Iowa Constitution. Id. at 820-21 . We also noted the powerful intersection of Whren , Atwater , and Bertine 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." Id. at 814. We observed that "[a]n essentially unregulated legal framework allowing wide police discretion in stopping, arresting, and conducting warrantless inventory searches of the driver's automobile amounts to a general warrant regime that is anathema to search and seizure law." Id. at 815. We rejected the approach of the United States Supreme Court in downgrading and demoting the warrant clause in favor of a general, free-floating reasonableness standard in its search and seizure law. Id. at 815-16. We reiterated that our recent cases embrace "a strong warrant preference interpretation of article I, section 8." Id. at 816.

4. Summary. While the United States Supreme Court has engaged in a dramatic reduction of search and seizure protections in the automobile context, the trend in our law has been in the opposite direction. Unlike the recent innovative search and seizure decisions of the United States Supreme Court, this court has insisted on our traditional strong preference for search warrants even in the automobile context. In particular, we have been careful to ensure that our law does not permit law enforcement to operate with what amounts to the equivalent of a general warrant and expose large segments of the population to search and seizure without a particularized showing of the basis for the intrusion on liberty.

V. The Constitutionality of Searches Based on Pretext.

A. Overview of Pretextual Searches. In the earliest court cases, pretextual searches appear to have been disfavored in the few cases that addressed the issue. In the 1960s, "the Kerner Commission identified [pretextual stops] as racially discriminatory and a key trigger of the urban riots" of the decade. Charles R. Epp et al., Pulled Over: How Police Stops Define Race and Citizenship 27, 31 (2014) [hereinafter Epp et al.].

With the commencement of the "war on drugs" in the early 1980s, pretextual searches made something of a comeback. For instance, the Drug Enforcement Administration embarked on a cooperative, state-federal program, called Operation Pipeline, that was intended to halt the flow of drugs on interstate highways through traffic stops designed to allow officers to investigate whether the drivers were involved in drug trafficking. Wayne R. LaFave, *896 The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment , 102 Mich. L. Rev. 1843 , 1844 & n.8 (2004) [hereinafter LaFave, "Routine Traffic Stop" ]. Then, in 1996, in Whren , the Supreme Court gave the practice a major boost by declaring that any stop for a traffic violation based on probable cause was immune from Fourth Amendment review regardless of the motivation for the stop. Whren , 517 U.S. at 811-16 , 116 S. Ct. at 1773 -76 . Many state courts that had previously condemned pretextual searches reversed course under the glare of Supreme Court precedent. See, e.g. , Gama v. State , 112 Nev. 833 , 920 P.2d 1010 , 1012-13 (Nev. 1996) (per curiam); People v. Robinson , 97 N.Y.2d 341 , 741 N.Y.S.2d 147 , 767 N.E.2d 638 , 640 (N.Y. 2001). While the Kerner Commission in 1968 decried pretextual search and seizure practice, the Supreme Court in Whren gave it a Fourth Amendment license.

The potential abuses arising from pretextual investigative traffic stops were apparent at the time of Whren . See, e.g. , United States v. Harvey , 16 F.3d 109 , 110 (6th Cir. 1994) ("The officers stopped the vehicle for speeding and equipment violations and because, as one officer later testified at the suppression hearing, '[t]he vehicle that I observed with the defective equipment was very similar in appearance and profile to several other vehicles that I have stopped which ultimately ended in arrests of drug traffickers.' " (Alteration in original.)); id. at 113 (Keith, C.J., dissenting) (noting that the police officer testified that the basis or part of the basis for the stop was that "[t]here were three young black male occupants in an old vehicle"); State v. Arroyo , 796 P.2d 684 , 688 n.3 (Utah 1990) ("As a result [of] Trooper Mangelson's training ... whenever he observed an Hispanic individual driving a vehicle he wanted to stop the vehicle."). Both Harvey and Arroyo involved traffic stops of racial minorities.

Events after Whren have put the issue into even sharper relief. In the more than twenty years since Whren , many studies have found that African-Americans and other minorities are disproportionately subject to police seizures. See, e.g. , Frank R. Baumgartner et al., Racial Disparities in Traffic Stop Outcomes , 9 Duke F. for L. & Soc. Change 21, 24-26 (2017) [hereinafter Baumgartner et al., Racial Disparities in Traffic Stop Outcomes ] (noting ubiquity of substantial racial disparities stemming from traffic stops in each of the sixteen states with available data, including Missouri, Nebraska, and Illinois); Ronnie A. Dunn, Racial Profiling: A Persistent Civil Rights Challenge Even in the Twenty-First Century , 66 Case W. Res. L. Rev. 957 , 986 (2016) [hereinafter Dunn] (discussing study showing racial disparities in traffic stops in Ohio communities); Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway , 101 Mich. L. Rev. 651 , 660 (2002) [hereinafter Gross & Barnes] (finding Maryland state troopers discriminate against African-American and Hispanic motorists at every stage of encounter, from initial stop to final search); Mary N. Beall, Article, Gutting the Fourth Amendment: Judicial Complicity in Racial Profiling and the Real-Life Implications , 36 Law & Ineq. 145 , 149 & n.27 (2018) [hereinafter Beall] (summarizing studies in North Carolina and Detroit showing racial disproportionality in traffic stops).

Finally, anecdotal evidence of what has become known as "driving while black" continues to accumulate. When Dr. Martin Luther King Jr. was arrested on January 26, 1956, in Montgomery, Alabama, for driving thirty miles per hour in a zone with a speed limit of twenty-five miles per hour, *897 no one seriously believed that King was arrested to protect the traveling public. See Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott , 98 Yale L.J. 999 , 1028 (1989). Other negative experiences with traffic stops have been reported by sports stars Marcus Allen and Joe Morgan, prominent attorneys Johnnie Cochran and Christopher Darden, actors Wesley Snipes and Will Smith, politician and lawyer Deval Patrick, and federal judge Filemon Vela. See David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters , 84 Minn. L. Rev. 265 , 265, 275 (1999) ; Lupe S. Salinas & Fernando Colon-Navarro, Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat , 37 T. Marshall L. Rev. 5 , 11 n.36, 41 (2011) ; David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment , 1997 Sup. Ct. Rev. 271 , 312 n.196 [hereinafter Sklansky] ; Juan R. Torruella, Déjà vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon , 20 B.U. Pub. Int. L.J. 167 , 190 n.136 (2011) [hereinafter Torruella]. As noted by Representative John Conyers, "[T]here are virtually no African-American males-including Congressmen, actors, athletes, and office workers-who have not been stopped at one time or another for an alleged traffic violation, namely driving while black." Sklansky, 1997 Sup. Ct. Rev. at 312 n.196 (quoting 143 Cong. Rec. E10 (daily ed. Jan. 7, 1997) (remarks of Rep. Conyers)).

B. Approaches to Pretext Prior to Whren .

1. Approaches to pretextual investigative searches in United States Supreme Court cases prior to Whren. Prior to Whren , the United States Supreme Court in several cases indicated that pretextual searches were likely to be unlawful under the Fourth Amendment. For example, in United States v. Lefkowitz , the Supreme Court considered whether the Fourth Amendment was violated where law enforcement conducted a thorough search of a premises solely armed with an arrest warrant. 285 U.S. 452 , 463, 52 S. Ct. 420 , 423, 76 L.Ed. 877 (1932), abrogated in part by Harris v. United States , 331 U.S. 145 , 153, 67 S. Ct. 1098 , 1102, 91 L.Ed. 1399 (1947), overruled in part by Chimel , 395 U.S. at 768 , 89 S. Ct. at 2042 -43 . The Lefkowitz Court said yes. Id. at 467, 52 S. Ct. at 424 . In clear terms, the Lefkowitz Court declared, "An arrest may not be used as a pretext to search for evidence." Id.

Similarly, in Abel v. United States , the Supreme Court considered the use of an administrative warrant to gather evidence of espionage. 362 U.S. 217 , 218-19, 80 S. Ct. 683 , 686-87, 4 L.Ed.2d 668 (1960). In Abel , immigration officers obtained an administrative arrest warrant to seize Abel on the ground that he was violating immigration law. Id. at 221-22 , 80 S. Ct. at 688 . The FBI, who had an interest in Abel regarding potential espionage, accompanied the immigration officials to Abel's hotel to arrest him. Id. at 221-22 , 80 S. Ct. at 688 -89 . Ultimately, the government obtained a number of documents tending to incriminate Abel on conspiracy to commit espionage. Id. at 224-25 , 80 S. Ct. at 689 -90 . Abel sought to suppress the evidence on the ground that the immigration arrest effort was pretextual and designed in fact to allow the FBI to discover incriminating evidence without a warrant. Id. at 225-26 , 80 S. Ct. at 690 .

The Supreme Court rejected the claim based on the facts of the case. Id. at 226-30 , 80 S. Ct. at 690 -92 . The Abel Court found that the arrest was not conducted in bad faith and was not pretextual in nature. Id. The Supreme Court noted, however, *898 "Were this claim [of pretext] justified by the record, it would indeed reveal a serious misconduct by law-enforcing officers." Id. at 226 , 80 S. Ct. at 690 . The Supreme Court stated that the test for pretext was "whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime." Id. at 230 , 80 S. Ct. at 692 . The Abel Court emphasized, however, that administrative searches conducted pursuant to standardized procedures should not be considered pretextual. See id. at 229 , 80 S. Ct. at 692 .

After Lefkowitz and Abel , a number of United States Supreme Court cases suggested that pretextual searches would raise serious constitutional problems. For instance, in Steagald v. United States , 451 U.S. 204 , 205-07, 101 S. Ct. 1642 , 1644-45, 68 L.Ed.2d 38 (1981), the Supreme Court considered a case where police armed with an arrest warrant entered a home and discovered drugs and other evidence. The defendant moved to suppress the drug-related evidence on grounds of pretext, arguing that it was illegally obtained because the agents had failed to secure a search warrant before entering the home. Id. at 207 , 101 S. Ct. at 1645. The Supreme Court agreed, holding that an arrest warrant may not serve as "the pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place." Id. at 215, 101 S. Ct. at 1649.

And in several cases upholding searches, the Supreme Court emphasized the lack of evidence showing that the searches were pretextual. For example, in Colorado v. Bannister , 449 U.S. 1 , 4 n.4, 101 S. Ct. 42 , 44 n.4, 66 L.Ed.2d 1 (1980) (per curiam), the Supreme Court stressed, "There was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants." Similarly, in Florida v. Wells , 495 U.S. 1 , 2-3, 110 S. Ct. 1632 , 1634, 109 L.Ed.2d 1 (1990), the Supreme Court considered whether incriminating evidence obtained in an inventory search should be suppressed. The Court declined to suppress the evidence but noted, "[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Id. at 4 , 110 S. Ct. at 1635. Further, in Bertine , 479 U.S. at 372 , 107 S. Ct. at 741 , the Supreme Court declined to suppress the evidence obtained in an administrative search but observed that the defendant made "no showing that the police ... acted in bad faith."

Finally, in New York v. Burger , 482 U.S. 691 , 693, 107 S. Ct. 2636 , 2639, 96 L.Ed.2d 601 (1987), the Court reviewed a state statute authorizing a warrantless search of an automobile junkyard. One question presented in the case was

whether an otherwise proper administrative inspection is unconstitutional because the ultimate purpose of the regulatory statute pursuant to which the search is done-the deterrence of criminal behavior-is the same as that of penal laws, with the result that the inspection may disclose violations not only of the regulatory statute but also of the penal statutes.

Id. The Court disagreed with the New York Court of Appeals that the administrative goal was pretextual because "a State can address a major social problem both by way of an administrative scheme and through penal sanctions." Id. at 712 , 107 S. Ct. at 2649. The Court also explained that the legislative history to the statute revealed proper regulatory purposes for the administrative scheme. Id. at 716 n.27, 107 S. Ct. at 2651 n.27. Justice Brennan, joined by Justice Marshall, dissented *899 finding that the pretextual nature of the administrative scheme was illustrated by the fact that police officers copied serial numbers from a wheelchair and a walker, objects that were in no way relevant to the automobile-related administrative scheme. Id. at 725 & n.12, 107 S. Ct. at 2656 & n.12 (Brennan, J., dissenting).

The Lefkowitz-Abel line of cases made sense, particularly during the years when the Supreme Court embraced a strong warrant-preference approach to the Fourth Amendment. Yet there were also cases that suggested that drawing the line at pretextual searches might not hold in light of pragmatic considerations embraced by some members of the Court.

For example, in Massachusetts v. Painten , 389 U.S. 560 , 561, 88 S. Ct. 660 , 661, 19 L.Ed.2d 770 (1968) (per curiam), the United States Supreme Court in a per curiam decision dismissed a petition for certiorari as improvidently granted in a case involving an alleged pretextual search because the record in the case was not sufficiently clear and specific to permit a decision on important constitutional questions. In a dissenting opinion, however, Justice White, with two other Justices, expressed the view that "sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources." Id. at 565 , 88 S. Ct. at 663 (White, J., dissenting). Painten, however, did not defend on the ground that the "knock and talk" was pretextual but solely on the ground that he did not consent to the search. George E. Dix, Subjective "Intent" as a Component of Fourth Amendment Reasonableness , 76 Miss. L.J. 373 , 385 (2006) [hereinafter Dix].

The United States Supreme Court seemed to wobble around the Lefkowitz-Abel line in United States v. Robinson , 414 U.S. 218 , 94 S. Ct. 467 , 38 L.Ed.2d 427 (1973). In Robinson , the Supreme Court considered a case where the defendant was arrested for driving while his operator's permit was revoked. Id. at 220 , 94 S. Ct. at 469-70. Pursuant to the arrest, the police searched him and retrieved a crumpled cigarette package that contained heroine capsules. Id. at 221-23, 94 S. Ct. at 470-71. The defendant was then charged and convicted of drug-related offenses. Id. at 219, 94 S. Ct. at 469.

In Robinson , the Supreme Court concluded that a search incident to arrest in a traffic stop was always permitted, even without reasonable suspicion. See id. at 235, 95 S. Ct. at 477. In a footnote, the Court summarized Robinson's position in the lower court (but not the Supreme Court), where he asserted that the officer "may have used the subsequent traffic violation arrest as a mere pretext for a narcotics search." Id. at 221 n.1, 94 S. Ct. at 470 n.1. The Robinson Court noted that placing Robinson in custody following his arrest "was not a departure from established police department practice." Id. The Robinson Court thus was not required to directly address the validity of a pretextual stop. Id.

Justice Marshall, joined by Justices Douglas and Brennan, dissented. Id. at 238, 94 S. Ct. at 477 (Marshall, J., dissenting). Justice Marshall emphasized that whether evidence should be suppressed as a result of a traffic stop raised a fact-specific question. Id. at 248, 94 S. Ct. at 482. He cited cases from state jurisdictions that stood for the proposition that an arrest for a minor traffic charge cannot be used as a lever for expanding the search, including unsupported pat-down searches. Id. at 244-46, 94 S. Ct. at 481-82. Justice Marshall emphasized the Lefkowitz-Abel line of cases in rejecting the majority's proposition that all that was required to support the search in the case was an *900 objectively valid traffic arrest. Id. at 248, 94 S. Ct. at 483.

Next, in Scott v. United States , 436 U.S. 128 , 130-31, 98 S. Ct. 1717 , 1719-20, 56 L.Ed.2d 168 (1978), the Supreme Court considered a case involving a question of the alleged failure of agents to "minimize" wiretap interceptions under the Omnibus Crime Control and Safe Streets Act of 1968. A federal district court found a statutory violation and held that suppression should be granted, largely because the agents were aware of the statutory minimization requirement "but made no attempt to comply therewith." Id. at 133 , 98 S. Ct. at 1721. The court of appeals reversed. Id. at 134, 98 S. Ct. at 1721.

In affirming the reversal of the district court, the Supreme Court held that under the facts of the case, the agents never reached the point where they had a duty to minimize the calls. Id. at 141-42, 98 S. Ct. at 1725-26. What they might have done had they crossed that threshold, however, was irrelevant. See id. The Supreme Court stated, "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action." Id. at 138, 98 S. Ct. at 1723.

Another case of interest is United States v. Villamonte-Marquez , 462 U.S. 579 , 103 S. Ct. 2573 , 77 L.Ed.2d 22 (1983). In Villamonte-Marquez , the Supreme Court rejected an argument that, because customs officers were accompanied by a state police officer and were following a tip that the vessel may contain narcotics, the customs officers could not rely on statute authorizing the boarding of vessels for inspection. Id. at 584 & n.3, 103 S. Ct. at 2577 & n.3. In so construing the statute, the Supreme Court emphasized the need to protect the nation's borders and the minimal expectation of privacy associated with border situations. Id. at 588-89 , 103 S. Ct. at 2579 -80 .

Prior to Whren , then, there were two competing strands of language in Supreme Court precedents. The Lefkowitz-Abel strand emphasized that pretextual searches were invalid and even amounted to serious misconduct by law enforcement. Yet in the Scott-Robinson line, the Supreme Court's language emphasized the burdens of engaging in subjective inquiry of the purposes of law enforcement.

2. Pretextual investigative stops in lower federal courts prior to Whren. Given the competing lines of Supreme Court authority, it is not surprising that a split in the federal circuit courts developed regarding the lawfulness of pretextual searches. The majority of federal circuit courts followed the approach in the Scott-Robinson line of cases by holding that where an officer has objective reasons to believe a traffic violation has occurred, the stop is reasonable. This approach is sometimes referred to as the "could have" test because what is important is not the officer's actual motivation but, instead, whether an objective officer, under all the facts and circumstances, could have a reasonable basis for the traffic stop. See, e.g. , United States v. Botero-Ospina , 71 F.3d 783 , 786-87 (10th Cir. 1995) (en banc); United States v. Johnson , 63 F.3d 242 , 246-47 (3d Cir. 1995) ; United States v. Scopo , 19 F.3d 777 , 782-84 (2d Cir. 1994) ; United States v. Ferguson , 8 F.3d 385 , 391 (6th Cir. 1993) (en banc); United States v. Meyers , 990 F.2d 1083 , 1085 (8th Cir. 1993) ; United States v. Causey , 834 F.2d 1179 , 1184-85 (5th Cir. 1987) (en banc).

A number of these federal circuit court cases, however, provoked strong dissents. For instance, in Botero-Ospina , the Tenth Circuit reversed its approach to pretextual searches announced in *901 United States v. Guzman , 864 F.2d 1512 , 1517 (10th Cir. 1988), in favor of the "could have" approach. 71 F.3d at 785 -87 . Chief Judge Seymour, with two other judges, wrote in a dissent that "the majority relies on reasons so logically or legally flawed as to be little more than self-serving rationalizations." Id. at 789 (Seymour, C.J., dissenting). She bemoaned that under the majority's approach, it is "irrelevant that the stop was motivated by racial animus, an inarticulable hunch, or any of the other improper reasons." Id.

Chief Judge Seymour urged application of a reasonable officer standard, such as that articulated in Terry , 392 U.S. at 21 -24 , 88 S. Ct. at 1879-81 , in evaluating the validity of pretextual stops. 71 F.3d at 789 -91 . This amounted to a "would have" test. The test according to Chief Judge Seymour was whether a reasonable officer would have made the traffic stop notwithstanding any pretextual motive. See id. Anything less "would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches." Id. at 790-91 (quoting Terry , 392 U.S. at 22 , 88 S. Ct. at 1880 ). In closing, Chief Judge Seymour observed,

[T]he magnitude of the majority's deviation from Supreme Court precedent and the poverty of its reasons for doing so prompt me to observe that it is not for this court to provide law enforcement with a weapon in the war on drugs at the expense of the Fourth Amendment. A conviction won by eroding every individual's right to personal security is dearly bought indeed. In my judgment, we are perilously close to selling our birthright for bread and pottage.

Id. at 795.

Judge Lucero also filed a dissenting opinion in Botero-Ospina . Id. (Lucero, J., dissenting). He pointed out that the majority's message to law enforcement officers was, "You may stop motorists on a subterfuge; we don't care and we won't ask." Id. Judge Lucero found a similarity between the majority's approach and the general warrants and writs of assistance that triggered the American Revolution. Id. at 796 . He closed with the following observation:

I have every confidence in the ability of the trial courts to determine whether Fourth Amendment-related traffic stops are reasonable under a totality of the circumstances test. I do not agree that merely asking whether an officer could have made a stop is an objective standard for reasonableness; rather I see it as a warrant for arbitrary exercise of police power.

Id.

And in Causey , Judge Rubin filed a dissent worth pondering. 834 F.2d at 1186 (Rubin, J., dissenting). Judge Rubin, for himself and five other judges, emphasized, "When ... a reasonable officer would not have made the seizure of the suspect's person absent an invalid purpose, the arrest must be condemned as pretextual." Id. at 1187 . Further, he noted, "An arrest is arbitrary, hence unconstitutional, if it is made in accordance with a potentially discriminatory plan, even when the same action, undertaken in accordance with neutral principles, would be permissible." Id. at 1187-88 .

Finally, in Harvey , Chief Judge Keith powerfully dissented. 16 F.3d at 112 . In Harvey , an African-American was stopped for traveling three miles an hour over the speed limit and subsequently charged with drug crimes. See id. at 113 . The officer involved testified, "Almost every time that we have arrested drug traffickers from Detroit, they're usually young black males driving old cars." Id. (emphasis omitted). Chief Judge Keith noted that "the majority acquiesces to an officer's substitution of race for probable cause and essentially *902 licenses the state to discriminate." Id. at 114 .

While the majority of the circuits had adopted the view that a traffic stop was permissible under the "could have" test, two circuits adopted what amounted to the "would have" test. For example, in United States v. Cannon , the Ninth Circuit adhered to the view that pretextual searches were unlawful. 29 F.3d 472 , 474-75 (9th Cir. 1994). Citing precedent from the Tenth Circuit that was later reversed in a controversial en banc opinion, the Cannon court stated, "In the absence of some limit on police power to make such [pretextual] stops, 'thousands of everyday citizens who violate minor traffic regulations will be subject to unfettered police discretion as to whom to stop.' " Id. at 474-75 (quoting Guzman , 864 F.2d at 1516 ). As a result, the Cannon court embraced the "would have" test and rejected the "could have" test. Id. at 476.

Similarly, in United States v. Smith , 799 F.2d 704 , 708 (11th Cir. 1986), the Eleventh Circuit embraced the "would have" approach to pretextual stops. The Smith court emphasized that under the "would have" approach, the stop "must be both 'justified at its inception' and 'reasonably related in scope to the circumstances which justified the interference in the first place.' " Id. at 711 (quoting Terry , 392 U.S. at 20 , 88 S. Ct. at 1879 ). The Smith court noted that were it to abandon the "would have" approach to pretextual stops, "[w]ith little more than an inarticulate 'hunch' of illegal activity an officer could begin following a vehicle and then stop it for the slightest deviation from a completely steady course." Id.

3. Approaches to pretextual searches in state court decisions prior to Whren. State courts have far more experience with traffic stops than do federal courts. Given their experience with the law of the road, state courts were more receptive than federal courts to penetrating pretextual stops. Prior to Whren , many state courts that considered the issue believed the proper test for whether an allegedly pretextual stop was valid was whether an objective police officer would have made the stop notwithstanding the pretextual motivation. See, e.g. , Mings v. State , 318 Ark. 201 , 884 S.W.2d 596 , 602 (Ark. 1994) ; Kehoe v. State , 521 So. 2d 1094 , 1097 (Fla. 1988), overruled by Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles , 874 So. 2d 1171 , 1174 (Fla. 2004) ; People v. Mendoza , 234 Ill.App.3d 826 , 175 Ill.Dec. 361 , 599 N.E.2d 1375 , 1383 (1992) ; State v. Izzo , 623 A.2d 1277 , 1280 (Me. 1993) ; State v. Hoven , 269 N.W.2d 849 , 852-53 (Minn. 1978) (en banc); State v. Van Ackeren , 242 Neb. 479 , 495 N.W.2d 630 , 642-45 (Neb. 1993) ; Alejandre v. State , 111 Nev. 1235 , 903 P.2d 794 , 796 (Nev. 1995), overruled by Gama , 920 P.2d at 1013 ; People v. James , 217 A.D.2d 969 , 630 N.Y.S.2d 176 , 176-77 (1995) ; State v. Hawley , 540 N.W.2d 390 , 392-93 (N.D. 1995) ; State v. Spencer , 75 Ohio App.3d 581 , 600 N.E.2d 335 , 337 (Ohio Ct. App. 1991), overruled by Dayton v. Erickson , 76 Ohio St.3d 3 , 665 N.E.2d 1091 , 1097-98 (Ohio 1996) ; State v. Chapin , 75 Wash.App. 460 , 879 P.2d 300 , 303-05 (1994), overruled in part by State v. Ladson , 138 Wash.2d 343 , 979 P.2d 833 , 843 (Wash. 1999) (en banc) (stating that both subjective and objective factors are relevant to the pretext inquiry). With minor variations, therefore, these courts adopted the "would have" test.

Under the "would have" test, the question in a pretextual traffic stop is whether a reasonable officer would have made the stop notwithstanding any improper investigative motive. By the mid-1990s, the reasonable officer standard for evaluating pretextual stops under the "would have" test seemed to be gaining ground among *903 the states. See Thanner v. State , 93 Md.App. 134 , 611 A.2d 1030 , 1032 (1992). A number of state supreme courts, however, declined to suppress evidence obtained in pretextual traffic stops. See, e.g. , Ex parte Scarbrough , 621 So. 2d 1006 , 1010 (Ala. 1993) ; State v. Law , 115 Idaho 769 , 769 P.2d 1141 , 1144-45 (Idaho Ct. App. 1989) ; Garcia v. State , 827 S.W.2d 937 , 942 (Tex. Crim. App. 1992) (en banc).

4. Approaches to pretextual searches in Iowa prior to Whren. Prior to Whren , this court had several occasions to consider the validity of pretextual stops. In State v. Cooley , 229 N.W.2d 755 , 756 (Iowa 1975), police were on special assignment to investigate armed robberies and house prowling. They observed a vehicle with a passenger, Cooley, who left the vehicle and walked several times between the vehicle and a tavern. Id. After the vehicle traveled for several blocks, the officers stopped the vehicle. Id. When Cooley was asked to step out of the vehicle, police noticed the handle of a revolver protruding from beneath the front seat. Id. Cooley was arrested and charged with carrying a concealed weapon. Id.

Cooley sought to suppress evidence arising from the stop. Id. At the suppression hearing, one of the officers involved testified that the initial stop arose because the actions of the defendant coming and going from the tavern were suspicious. Id. at 758-59 . The officer also testified that other factors leading to the stop included the high-crime rate and the predominantly African-American population in the area. Id. at 759 .

Although a provision of the Iowa Code provided for a stop to inspect the operator's permit, we held that the police stop was unlawful. Id. at 757-59 . Based on the record, we concluded that the car stop "was not effected for the motivative purpose of inspecting the operator's permit." Id. at 759 . We further concluded there was no reasonable suspicion of crime to support the stop. Id. at 759-61 . As a result, we concluded that the evidence obtained during the stop should be suppressed. Id. at 761 . The Cooley case does not indicate whether it was based on the Iowa Constitution, the Federal Constitution, or both.

After Cooley , we repeatedly emphasized, in strong and direct language, that an officer is bound by the true reason for making a stop. See State v. Wiese , 525 N.W.2d 412 , 415 (Iowa 1994) ("We hold officers to their true reason for stopping a vehicle in question and will not allow them to justify a stop with reasons upon which they did not actually act."), overruled by Cline , 617 N.W.2d at 281 ; State v. Rosenstiel , 473 N.W.2d 59 , 61 (Iowa 1991) ("The officer is bound by the true reasons given for the stop."), overruled by Cline , 617 N.W.2d at 281 ; State v. Bailey , 452 N.W.2d 181 , 182 (Iowa 1990) ("We have consistently held that in determining the validity of an investigatory stop police officers are bound by the real reasons for their actions."), overruled by State v. Heminover , 619 N.W.2d 353 , 357 (Iowa 2000), overruled on other grounds by Turner , 630 N.W.2d at 606 n.2 ; State v. Lamp , 322 N.W.2d 48 , 51 (Iowa 1982) (en banc) ("The officer is bound by the true reason or reasons for making the stop; that is, the officer may not rely on reasons that he or she could have had but did not actually have."), overruled by Heminover , 619 N.W.2d at 357 ; State v. Aschenbrenner , 289 N.W.2d 618 , 619 (Iowa 1980) ("Officers are bound by their true reason for making the stop. They may not rely on reasons they could have had but did not actually have."), overruled by Cline , 617 N.W.2d at 281 .

In one pre- Whren case, however, we recognized that the United States Supreme Court might be changing course on *904 the question of pretextual arrests. In State v. Garcia , 461 N.W.2d 460 , 463 (Iowa 1990), we observed, "The traditional response to this police tactic [of pretextual arrests] has been to suppress all evidence derived from the search incident to the pretextual arrest." We cited federal caselaw suggesting that the Supreme Court might be departing from the traditional position on pretext. Id. at 463-64 . In Garcia , however, we concluded that even under the prevailing Iowa standard, the stop involved was not pretextual. Id. at 464 .

The bottom line is that for twenty years prior to Whren , Iowa consistently held the actual subjective motivation of the officer provided the relevant yardstick in determining whether a search was unlawfully pretextual.

C. Overview of Whren . In 1996, the United States Supreme Court considered the case of Whren v. United States , 517 U.S. 806 , 116 S. Ct. 1769 , 135 L.Ed.2d 89 . The Court held that the Fourth Amendment allows police to stop a motorist who the police have probable cause to believe has committed a traffic infraction regardless of the subjective motivation for the stop and even if a reasonable officer motivated by a desire to enforce the traffic laws would not have made the stop. Id. at 811-16 , 116 S. Ct. at 1773 -76 .

In Whren , police in an unmarked car in a "high drug area" in the District of Columbia observed a truck wait at a stop sign for an unusually long time, turn suddenly without signaling, and speed off at an "unreasonable" speed. Id. at 808 , 116 S. Ct. at 1772 . When the vehicle stopped behind other traffic, a police officer approached the driver's door of the truck and directed that the vehicle be put in park. Id. When the officer neared the driver's window, the officer observed plastic bags of crack cocaine in Whren's possession. Id. at 808-09 , 116 S. Ct. at 1772 . Whren was charged with drug offenses and convicted. Id. at 809 , 116 S. Ct. at 1772 . At a pretrial suppression hearing, Whren argued that the officer's asserted ground for approaching the vehicle-to give the driver a warning concerning traffic violations-was pretextual. Id. The district court denied the suppression motion, concluding that nothing demonstrated that the actions by the police were contrary to a normal traffic stop. Id. Whren's convictions were affirmed on appeal. Id.

At the Supreme Court, Whren challenged the district court's denial of his motion to suppress the evidence. Id. at 810 , 116 S. Ct. at 1772-73 . Whren conceded that the officers had probable cause to believe that various provisions of the traffic code had been violated. Id. at 810 , 116 S. Ct. at 1772 . Whren argued, however, that the proper test in the context of a highly regulated traffic stop was whether the police officers "would have made the stop for the reasons given" by the officers. Id. at 810 , 116 S. Ct. at 1773 .

The Whren Court indicated that the result in the case was dictated by prior precedent. Id. at 813 , 116 S. Ct. at 1774 . The Court characterized a footnote in Villamonte-Marquez , 462 U.S. at 584 n.3, 103 S. Ct. at 2577 n.3, as "flatly dismiss[ing] the idea that an ulterior motive might serve to strip the agents of their legal justification." Whren , 517 U.S. at 812 , 116 S. Ct. at 1774 . And the Court said Robinson "held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search.' " Id. at 812-13, 116 S. Ct. at 1774 (quoting Robinson , 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1 ). Further, the Court cited Gustafson v. Florida , 414 U.S. 260 , 266, 94 S. Ct. 488 , 492, 38 L.Ed.2d 456 (1973), where it held that a post-arrest search was valid even though it was not justified by safety concerns.

*905 Whren , 517 U.S. at 813 , 116 S. Ct. at 1774 . Finally, the Court quoted Scott for the proposition that "[s]ubjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional." Id. (alterations in original) (quoting Scott , 436 U.S. at 138 , 98 S. Ct. at 1723 ).

When the Whren Court asked itself rhetorically why its test would even preclude actual and admitted pretext from Fourth Amendment scrutiny, it simply observed that this "more sensible option" was foreclosed by its precedents. Id. at 814 , 116 S. Ct. at 1774-75 . The Whren Court further emphasized that the limiting precedents were not based on the difficulty of proving subjective intent but rather on the principle that "the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. at 814 , 116 S. Ct. at 1775 . With respect to the suggestion that Fourth Amendment reasonableness requires balancing, the Court emphasized that "the result of that balancing is not in doubt where the search or seizure is based upon probable cause." Id. at 817 , 116 S. Ct. at 1776 .

The Whren Court recognized the argument that traffic laws were so pervasive that virtually everyone is guilty of a violation of some kind. Id. at 818 , 116 S. Ct. at 1777 . It declared, however, that it could not discern a standard to decide when such laws become so expansive and so commonly violated that the infraction itself cannot be the ordinary measure of the lawfulness of enforcement. Id. at 818-19 , 116 S. Ct. at 1777 .

The Whren Court briefly acknowledged that racial profiling could be used in a discriminatory fashion in the context of pretextual search and seizure. See id. at 813 , 116 S. Ct. at 1774 . The Whren Court, however, declared that the remedy for such discrimination was found in the Equal Protection Clause, not the Fourth Amendment. Id.

D. Approaches to Pretextual Search and Seizure After Whren .

1. Whren in federal courts. The Supreme Court has applied the principle of Whren in follow-up cases. See, e.g. , Devenpeck v. Alford , 543 U.S. 146 , 153, 125 S. Ct. 588 , 593-94, 160 L.Ed.2d 537 (2004). And, of course, the Court's decisions on federal constitutional issues are binding upon lower federal courts.

Yet controversy remains. Consider the recent case of United States v. Johnson , 874 F.3d 571 (7th Cir. 2017) (en banc), cert. denied , --- U.S. ----, ----, 139 S. Ct. 58 , 58 (2018). In this case, police surrounded a car illegally parked within fifteen feet of a crosswalk. Id. at 572. After seeing Johnson make movements suggesting that he "was hiding something such as alcohol, drugs, or a gun," an officer ordered Johnson out of the car. Id. at 572-73. "Once the car's door was open, [the officer] saw a gun on the floor," leading to Johnson's arrest. Id. at 573.

The district court, relying on Whren , denied Johnson's motion to suppress. Id. According to the district court, the officers' desire to investigate drugs did not matter because the officers had objective reasons to believe that the car was illegally parked. See id. The majority opinion in Johnson held that Whren applies to parking violations and, because objective evidence of a parking violation subjected the driver to a parking ticket, there was sufficient reason to support the seizure of Johnson even if the officers' true motivation was investigatory in nature. See id. at 573-74.

The majority opinion in Johnson provoked a sharp dissent joined by two other judges. Id. at 575 (Hamilton, J., dissenting). The dissent noted that five officers *906 swooped down on the vehicle with lights shining, opened the doors, pulled all the passengers from the vehicle, and handcuffed them, all because of a suspected parking violation of being too close to an unmarked crosswalk. Id. The dissenters noted that Whren , when coupled with additional cases, including Atwater , 532 U.S. at 354 , 121 S. Ct. at 1557 , and Heien , 574 U.S. at ----, 135 S. Ct. at 536 , "gives the police broad discretion to impose severe intrusions on the privacy and freedom of civilians going about their business." Id. at 578 . The dissenters noted that the cumulative effect of the cases "mean[s] that authority to conduct an investigatory stop can trigger sweeping intrusions and even dangers." Id. The dissenters rejected the notion that pretextual parking violations can give rise to such "unreasonable" police conduct. Id. at 579-80 .

Johnson sought certiorari. Petition for a Writ of Certiorari at i, Johnson , --- U.S. ----, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1505539 , at *i. He received amicus support from the Cato Institute, which argued that Whren should be revisited if not limited. Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 2-3, Johnson , --- U.S. ----, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1981930 , at *2-3. The Civil and Human Rights Clinic at Howard University School of Law also filed an amicus brief, which emphasized the disproportionate effect of Whren on African-Americans. Brief of Howard University School of Law, Civil & Human Rights Clinic in Support of the Petitioner at 2-3, Johnson , --- U.S. ----, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1910945 , at *2-3. Finally, Fourth Amendment scholars entered the fray in support of Johnson, arguing that extending Whren to a civil parking violation was unreasonable under the Fourth Amendment and would "exacerbate the ill effects that Whren has already created." Brief of Fourth Amendment Scholars as Amici Curiae in Support of the Petitioner at 11-12, 16, Johnson , --- U.S. ----, 139 S. Ct. 58 (No. 17-1349), 2018 WL 1942537 , at *11-12, *16. The Supreme Court, however, denied certiorari. Johnson , --- U.S. ----, 139 S. Ct. at 58 .

Nevertheless, there is reason to believe that members of the United States Supreme Court have at least some concern about how Whren has played out in the real world. Four cases illustrate the point.

In Maryland v. Wilson , 519 U.S. 408 , 410, 117 S. Ct. 882 , 884, 137 L.Ed.2d 41 (1997), the Supreme Court held that a police officer may order the passenger of a lawfully stopped car to exit the vehicle pending completion of the stop. In dissent, Justice Kennedy expressed concern about the interplay between Whren and other cases. Id. at 423 , 117 S. Ct. at 890-91 (Kennedy, J., dissenting). Specifically, Justice Kennedy noted,

The practical effect of our holding in Whren , of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police.

Id. at 423, 117 S. Ct. at 890. Further, in a dissent joined by Justice Kennedy, Justice Stevens said that he "firmly believe[d] that the Fourth Amendment prohibits routine and arbitrary seizures of obviously innocent citizens." Id. at 416, 117 S. Ct. at 887 (Stevens, J., dissenting). The focus on Fourth Amendment protection against arbitrariness in both dissenting opinions was nowhere to be found in Whren .

Later, in Arkansas v. Sullivan , 532 U.S. 769 , 771-72, 121 S. Ct. 1876 , 1878, 149 L.Ed.2d 994 (2001) (per curiam), the Court reversed a decision of the Arkansas Supreme Court suppressing evidence in a pretextual traffic stop. But Justice Ginsburg, joined by Justices Stevens, O'Connor, *907 and Breyer, sent something of a warning shot. See id. at 772-73 , 121 S. Ct. at 1879 (Ginsburg, J., concurring). She declared, "[I]f experience demonstrates 'anything like an epidemic of unnecessary minor-offense arrests,' I hope the Court will reconsider its recent precedent." Id. at 773, 121 S. Ct. at 1879 (quoting Atwater , 532 U.S. at 353 , 121 S. Ct. at 1557 ).

Next, in Utah v. Strieff , 579 U.S. ----, ----, 136 S. Ct. 2056 , 2059, 195 L.Ed.2d 400 (2016), the Court considered a case where an officer did not have cause for an initial stop but, after obtaining identification from the individual, learned that there was an outstanding warrant for a parking ticket. The officer arrested Strieff and discovered drugs in a search incident to the arrest. Id. at ----, 136 S. Ct. at 2060 . The Supreme Court held that the initial illegality was sufficiently attenuated from the later search such that no constitutional violation was present. Id. at ----, 136 S. Ct. at 2062 -63 .

Justice Sotomayor, joined in part by Justice Ginsberg, dissented. Id. at ----, 136 S. Ct. at 2064 (Sotomayor, J., dissenting). Notably, Justice Sotomayor wrote passionately about what the Utah Supreme Court characterized as the "routine procedure" and "common practice" of running warrant checks on persons detained without reasonable suspicion. Id. at ----, 136 S. Ct. at 2069 (quoting State v. Topanotes , 76 P.3d 1159 , 1160 (Utah 2003) ). Writing just for herself, she emphasized that "unlawful 'stops' have severe consequences much greater than the inconvenience suggested by the name." Id. at ----, 136 S. Ct. at 2069 . Justice Sotomayor also criticized the thrust of Supreme Court cases that allow stops that "factor in your ethnicity, where you live, what you were wearing, and how you behaved." Id. at ----, 136 S. Ct. at 2069 (citations omitted). Although Strieff was white, Justice Sotomayor noted that "it is no secret that people of color are disproportionate victims of this type of [suspicionless] scrutiny." Id. at ----, 136 S. Ct. at 2070 .

Justice Kagan also dissented, joined by Justice Ginsburg. Id. at ----, 136 S. Ct. at 2071 (Kagan, J., dissenting). She noted that warrant checks are "routine procedure" and "common practice." Id. at ----, 136 S. Ct. at 2073 (quoting Topanotes , 76 P.3d at 1160 ). The majority opinion, according to Justice Kagan, thus allows police officers to engage in unconstitutional stops and seek to cure them through routine warrant checks. Id. at ----, 136 S. Ct at 2073 -74 . An officer may consequently be encouraged to make an unconstitutional stop and conduct a check to see if the target is one of many millions of people, and if there is a hit, anything uncovered is fair game for a criminal prosecution. Id. Justice Kagan emphasized that police officers will see a potential advantage in unconstitutional stops without reasonable suspicion, exactly what the exclusionary rule was designed to avoid. Id. at ----, 136 S. Ct. at 2074 .

Finally, in District of Columbia v. Wesby , 583 U.S. ----, ----, 138 S. Ct. 577 , 584, 199 L.Ed.2d 453 (2018), the Court considered a case where partygoers brought a 42 U.S.C. § 1983 action against police officers for false arrest. The central issues in the case were whether the officers had probable cause to arrest the party participants and, if not, whether the officers were nonetheless entitled to qualified immunity. Id. at ----, 138 S. Ct. at 585 . In considering the question of qualified immunity, the Court concluded that "a reasonable officer," looking at the totality of circumstances, could have concluded that there was a legal basis for the arrests. Id. at ----, 138 S. Ct. at 593 .

Justice Ginsburg concurred in the judgment in part. Id. at ----, 138 S. Ct. at 593 *908 (concurring in the judgment in part). She expressed concern that the Supreme Court's approach to search and seizure "sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection." Id. at ----, 138 S. Ct. at 594 . She noted, among other things, that commentators have criticized the path charted in Whren and its progeny, which hold that "an arresting officer's state of mind ... is irrelevant to the existence of probable cause." Id. (alteration in original) (quoting Devenpeck , 543 U.S. at 153 , 125 S. Ct. at 593 ). Justice Ginsburg stated that she "would leave open, for reexamination in a future case, whether a police officer's reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry." Id. Yet Justice Ginsburg recognized that the position advocated by the plaintiffs in the case was not embraced by "settled law" and, as a result, the Court correctly decided the issue of qualified immunity. Id.

Wilson , Sullivan , Strieff , and Wesby do not necessarily indicate a majority of the current Supreme Court is in favor of departing from Whren . But the concurring and dissenting opinions show that among some current members of the Supreme Court, the consequences of Whren are cause for concern.

2. Whren in state courts. After Whren , many state courts conformed their interpretations of state constitutional search and seizure provisions to that federal decision. Most state courts have done so with little analysis, often by simply lockstepping state constitutional law with federal precedent even if contrary to prior state court holdings. See, e.g. , Gama , 920 P.2d at 1012 (reversing course from prior precedent and noting the Nevada Constitution provides no greater protection than that afforded under the Federal Constitution); State v. Vineyard , 958 S.W.2d 730 , 733-36 (Tenn. 1997) (holding in the context of pretextual traffic stops that the Tennessee Constitution is coextensive with the Fourth Amendment). Others, however, have taken a different path.

I first turn to cases out of Washington. Like Iowa, the Washington Supreme Court has insisted on the warrant-preference approach and has rejected the Leon approach under the state constitution. State v. Afana , 169 Wash.2d 169 , 233 P.3d 879 , 884-86 (Wash. 2010) (en banc) (rejecting Leon ); State v. Ringer , 100 Wash.2d 686 , 674 P.2d 1240 , 1247-49 (Wash. 1983) (en banc) (insisting on warrant preference), overruled in part on other grounds by State v. Stroud , 106 Wash.2d 144 , 720 P.2d 436 , 440-41 (Wash. 1986) (en banc), overruled in part by State v. Valdez , 167 Wash.2d 761 , 224 P.3d 751 , 759 (Wash. 2009) (en banc). The Washington conceptual approach to search and seizure is thus similar to that in Iowa.

The Washington Supreme Court declined to follow Whren under the state constitution in Ladson , 979 P.2d at 836 . The issue in that case was "whether pretextual traffic stops violate article I, section 7 of the Washington Constitution." 20 Id. In pre- Whren cases, the Washington Supreme Court had declared that police could not lawfully engage in pretextual arrests or searches. State v. Michaels , 60 Wash.2d 638 , 374 P.2d 989 , 992 (Wash. 1962) (en banc) ("An arrest may not be used as a pretext to search for evidence."), abrogated in part on other grounds by Ringer , 674 P.2d at 1248 , as recognized in *909 State v. Snapp , 174 Wash.2d 177 , 275 P.3d 289 , 296-97 (Wash. 2012) (en banc); see also State v. Montague , 73 Wash.2d 381 , 438 P.2d 571 , 574 (Wash. 1968) (rejecting the use of impoundment "as a device and pretext for making a general exploratory search of the car without a search warrant").

In Ladson , the Washington Supreme Court framed the issue of pretext as follows:

[T]he problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce traffic code) which is at once lawfully sufficient but not the real reason. Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason.

979 P.2d at 838 . The Washington Supreme Court rejected the teaching of Whren and instead held that pretextual stops violate article I, section 7 of the Washington Constitution. Id. at 842 . In determining whether a stop is pretextual, the Ladson court held that the state must show, both subjectively and objectively, the traffic stop was not pretextual. Id. at 843 .

In the subsequent case of State v. Arreola , 176 Wash.2d 284 , 290 P.3d 983 , 986 (Wash. 2012) (en banc), the Washington Supreme Court held that a traffic stop with mixed motives was not pretextual as long as the motive to stop for the traffic infraction was an "actual, conscious, and independent cause" of the stop. Under Arreola , the question was whether the officer would have conducted the traffic stop regardless of the illegitimate reason or motivation. Id. at 991-92 . According to Arreola , analysis of the pretext issue still requires consideration of both subjective intent and objective factors. Id. at 992 . The presence of a legally inadequate motivation, however, does not affect the validity of the stop if the stop would have been made independently. Id.

A Delaware court also declined to follow Whren under its state constitution in State v. Heath , 929 A.2d 390 , 402 (Del. Super. Ct. 2006). In Heath , the court considered the validity of a stop for a minor traffic violation that occurred in the course of a drug investigation. Id. at 394-96 . The Heath court noted that "studies conducted on a stretch of [the interstate highway] between Baltimore and Delaware demonstrate that 93% of all drivers were observed committing some type of traffic violation." Id. at 398 . In light of the pervasiveness of traffic violations, the Heath court reasoned that allowing an officer to search for evidence based on a mere hunch of an unrelated crime by executing a traffic stop amounted to "a general warrant to search and seize virtually all travelers on the roads of this State." Id. at 402 .

As a result, the Heath court declined to follow Whren under article I, section 6 of the Delaware Constitution. Id. Instead, the Delaware court developed a three-step approach to determining whether a stop was lawful. First, the state has the burden of showing a reasonable basis to effectuate the stop based on a traffic violation. Id. at 402-03 . If the state meets its initial burden, the burden shifts to the defendant to show that the real reason for the stop was an unrelated purpose for which there was no probable cause or reasonable suspicion. Id. at 403 . In order to meet the burden on this second step, the defendant needs to show that

(1) he was stopped only for a traffic violation; (2) he was later arrested for and charged with a crime unrelated to the stop; (3) the crime or evidence of the crime was discovered as a result of the stop; (4) the traffic stop was merely a *910 pretextual purpose, alleging that the officer had a hunch about, or suspected the defendant of, a non-traffic related offense unsupported by reasonable suspicion; and (5) the pretext can be inferred, at least, when the suppression hearing evidence is presented.

Id. A nonexclusive list of evidence that might be offered by the defendant to meet the burden on this second step includes

(1) evidence of the arresting officer's non-compliance with written police regulations; (2) evidence of the abnormal nature of the traffic stop; (3) testimony of the arresting officer that his reason for the stop was pretextual; (4) evidence that the officer's typical employment duties do not include traffic stops; (5) evidence that the officer was driving an unmarked car or was not in uniform; and (6) evidence that the stop was unnecessary for the protection of traffic safety.

Id.

If the defendant meets his or her burden in this second step, a presumption of pretext arises. Id. In the third step, however, the state may demonstrate that a non-pretextual reason existed for the stop. Id. Applying the three-step test, the Heath court concluded that the stop involved in that case was pretextual, and as a result, evidence of intoxicated driving was suppressed. 21 Id. at 404-06 .

I next turn to New Mexico. Like Washington, New Mexico adheres to the warrant-preference approach to search and seizure under its state constitution and rejects Leon . Campos v. State , 117 N.M. 155 , 870 P.2d 117 , 121 (N.M. 1994) (stressing warrant preference); State v. Gutierrez , 116 N.M. 431 , 863 P.2d 1052 , 1053 (N.M. 1993) (rejecting Leon ).

The New Mexico Court of Appeals has also declined to follow Whren . In State v. Ochoa , the New Mexico court considered the validity of a pretextual traffic stop under article II, section 10 of the New Mexico Constitution. 146 N.M. 32 , 206 P.3d 143 , 146 (N.M. Ct. App.), cert. granted , 145 N.M. 572 , 203 P.3d 103 , 103 (N.M. 2008), cert. quashed , 147 N.M. 464 , 225 P.3d 794 , 794 (N.M. 2009) ; see also Schuster v. State Dep't of Taxation & Revenue, Motor Vehicle Div. , 283 P.3d 288 , 297 (N.M. 2012) (discussing Ochoa with approval); State v. Gonzales , 150 N.M. 74 , 257 P.3d 894 , 897-98 (N.M. 2011) (same). The Ochoa court found the reasoning in Whren faulty. 206 P.3d at 148 -51 . Specifically, the court reasoned that because of the ubiquity of driving and the commonplace nature of traffic stops, probable cause and reasonable suspicion standards are not sufficient to limit police discretion in the enforcement of traffic standards. Id. at 150 . The court also rejected the notion that the Equal Protection Clause of the Federal Constitution affords an adequate remedy, noting that prominent legal scholars had concluded that remedy faces nearly insurmountable barriers. Id. at 150-51 . In any event, the court noted that reliance on the Equal Protection Clause would allow pretextual searches based on improper motives other than race. Id. at 151 .

*911 In order to determine the issue of pretext, the New Mexico court stated that "courts should consider the totality of the circumstances, judge the credibility of witnesses, weigh the evidence, make a decision, and exclude the evidence if the stop was unreasonable at its inception." Id. at 155 .

3. Iowa's response to Whren. After Whren , we decided Cline , 617 N.W.2d 277 . In Cline , we stated that in determining whether a stop was supported by probable cause, the officer's stated reasons did not bind the State. Id. at 280-81 . Instead, relying in part on Whren , we stated that whether or not probable cause existed for a search was determined by an objective standard. Id.

The issue in Cline , however, was not whether the initial stop was pretextual and designed to permit a search for which there was no constitutionally sufficient basis. This issue of pretext was not raised by the parties in briefing and was not decided. Further, the briefing nowhere suggests that the Iowa Constitution should be interpreted in a fashion different from the federal counterpart on this issue. Thus, the question of whether we should depart from Whren in the context of pretextual searches was not before the court and not decided. Instead, we simply held that when applying a Terry -type test to determine the validity of the initial seizure, the analysis was objective in nature. See id.

Two years later, we decided State v. Kreps , 650 N.W.2d 636 (Iowa 2002). As in Cline , the issue was the validity of the initial investigative stop. Id. at 640 . Also as in Cline , the parties did not raise the issue of whether to depart from federal standards in interpreting the Iowa Constitution. Indeed, in his brief, Kreps simply conceded that the standard for evaluating the lawfulness of the initial stop was an objective one. Appellee's Brief & Argument & Conditional Notice for Oral Argument at 6, Kreps , 650 N.W.2d 636 (No. 01-0571), 2001 WL 35712937 , at *6 ("The constitutional reasonableness of a search or seizure is determined by an objective standard."). Nowhere in Kreps does the defendant suggest that a different standard should be applied under article I, section 8 of the Iowa Constitution than is applied by the federal courts under the Fourth Amendment. The issue of a separate standard under the Iowa Constitution was not raised and was not briefed. An uncontested and summarily discussed issue is not entitled to stare decisis. See Haskenhoff v. Homeland Energy Sols., LLC , 897 N.W.2d 553 , 615 (Iowa 2017) (Appel, J., concurring in part and dissenting in part) ("An uncontested statement of law is not entitled to stare decisis."); see also United States v. Hemingway , 734 F.3d 323 , 335 (4th Cir. 2013) (holding that uncontested and summarily addressed issue in prior case was not controlling precedent).

In State v. Griffin , 691 N.W.2d 734 , 735-36 (Iowa 2005), we did consider an arrest pursuant to a minor traffic incident. In Griffin , the defendant did not preserve the claim that the Iowa Constitution should be interpreted differently than its federal counterpart by failing to raise the issue in the district court. Id. To raise the claim on appeal, the defendant briefly asserted prior ineffective assistance of counsel. Appellant's Brief & Argument & Request for Oral Argument at 6, Griffin , 691 N.W.2d 734 (No. 03-1321), 2004 WL 3777646 , at *6.

In a conclusory opinion, we noted that because of the nearly identical federal and state search and seizure provisions, "the construction of the federal constitution is persuasive in our interpretation of the state provision." Griffin , 691 N.W.2d at 737 . We did not provide any discussion of potential alternative interpretations. We stated that we had not found a basis to *912 distinguish the protections afforded by the Iowa Constitution from the federal caselaw. Id. The conclusory ruling in Griffin appears to rely upon a presumption that we should generally follow federal law, id. , a presumption we specifically overturned in Ochoa , 792 N.W.2d at 267 .

Notably in Griffin , however, we did not mention let alone overrule Cooley , 229 N.W.2d at 759 . Computer-based research has no cautionary red flags on Cooley . Perhaps the Griffin court thought the arrest in Griffin was different than the search in Cooley . If Griffin intended to overrule Cooley , it certainly would have said so. Unless we are mind readers, we cannot regard the Griffin court as thoughtfully overruling a precedent in a different context about a case it did not mention.

In State v. Predka , 555 N.W.2d 202 (Iowa 1996), there is not one word about the search and seizure provisions of article I, section 8 of the Iowa Constitution. That is, perhaps, because the issue was not raised in the defendant's brief. See Defendant-Appellant's Brief & Argument, Predka , 555 N.W.2d 202 (No. 95-1045), 1996 WL 34360016 . According to the Predka court, "The district court correctly concluded the stop was not in violation of Predka's Fourth Amendment rights." 555 N.W.2d at 206 . A case where article I, section 8 of the Iowa Constitution has not been raised or discussed does not bind us through stare decisis from revisiting the validity of pretextual stops under the state constitution. See Haskenhoff , 897 N.W.2d at 614-15 (collecting cases).

In State v. Nitcher , 720 N.W.2d 547 , 549-51 (Iowa 2006), we considered whether the police had probable cause coupled with exigent circumstances to support a search of a home that police suspected was involved in drug manufacturing. In considering the issue, we noted that the question of probable cause and exigent circumstances should be determined on an objective basis. Id. at 554 . We noted that Nitcher had not asked us to distinguish the Iowa Constitution from the Federal Constitution. Id. at 553 . Therefore, the issue of whether we should depart from the federal approach was not presented by the parties.

Finally, in Harrison , 846 N.W.2d at 363 , we considered a traffic stop where a license plate frame covered the county name. Iowa Code section 321.37(3) (2009) made it unlawful to place a frame over the registration plate which did not give a full view of all "numerals and letters." The question in Harrison was whether the obstruction of the county name amounted to an infraction under the statute. 846 N.W.2d at 363 . No issue of pretext was presented in the case and there was no holding based upon it. See id. at 364 n.1 ("The parties did not raise on appeal the issue of whether a pretextual traffic stop is valid. We therefore do not reach that issue."). There is no holding in Harrison that is relevant for the resolution of this case.

In any event, if we insisted on blinkered application of stare decisis, cases like Brown v. Board of Education , 347 U.S. at 488 , 74 S. Ct. at 688 , and Gideon v. Wainwright , 372 U.S. 335 , 337-38, 83 S. Ct. 792 , 793, 9 L.Ed.2d 799 (1963), would have been decided differently. "[I]f precedent is to have any value it must be based on a convincing rationale." Cline , 617 N.W.2d at 285 (quoting James , 393 N.W.2d at 472 ); see Vance , 790 N.W.2d at 789 . None of the Iowa cases that follow Whren even attempt to offer a convincing rationale but offer only naked conclusions. And a cut-and-paste job that simply declares another jurisdiction has followed a certain approach and inserts that approach into Iowa law is not a convincing rationale. See Collins v. Day , 644 N.E.2d 72 , 75 (Ind. 1994)

*913 (explaining that past reliance on federal caselaw in construing an Indiana constitutional provision does not preclude formulation of an independent standard for analyzing state constitutional claims under the provision); Jack L. Landau, Some Thoughts About State Constitutional Interpretation , 115 Penn. St. L. Rev. 837 , 871 (2011) ("A prior decision ... that merely assumes without any analysis that a state individual rights provision has the same meaning that the federal courts have given its parallel provision in the federal Bill of Rights should have no particular binding effect.").

VI. Application of Iowa Constitutional Principles to Pretextual Searches.

A. Problems with Whren .

1. Lack of understanding of historical context of Fourth Amendment and subsequent caselaw. Remarkably, Whren contains no discussion at all about the history or function of the Fourth Amendment. There is not a word regarding the revolutionary generation's deeply held concern about general warrants and open-ended government authority to engage in search and seizure. One will find no citation to the "briny irreverence" of the colonist toward the arbitrary exercise of government power. Burger, 14 Am. U. L. Rev. at 4 (quoting Cahn at 24). The admonitions of Judge Pratt and Mercy Otis Warren about the exercise of general discretionary power to engage in unfettered search and seizure are ignored. See Entick , 95 Eng. Rep. at 818; 2 Wils. K.B. at 292; Finkelman, 16 S. Ill. U. L.J. at 392. The important constitutional role of the Fourth Amendment-to restrain wide-open discretion of government officials to stop any car on the open road-is not analyzed under the facts of the case.

Instead, Whren simply skipped the lessons of history and omitted any consideration of the structural role of the Fourth Amendment in limiting law enforcement discretion. Whren speed skated to its conclusion, namely, that the Court's prior caselaw foreclosed any conclusion that pretextual traffic stops might offend the Fourth Amendment. See 517 U.S. at 812-13 , 116 S. Ct. at 1774 . The opinion is on authority, not reason. But Whren 's demand of obedience to the Court's authority was off the mark.

For instance, the Whren opinion relies heavily on the Scott case. See id. at 813, 116 S. Ct. at 1774 . The Scott case, however, did not involve a question of pretext at all but only a question of whether law enforcement complied with a statutory directive to minimize intercepted communications. 436 U.S. at 130 , 98 S. Ct. at 1719-20. And Scott did not involve pretextual actions but only subjective thoughts that had nothing to do with the holding of the case. Id. at 136-37 , 98 S. Ct. at 1723. No binding ruling there on the question presented in Whren .

Another case relied upon in Whren was Robinson . Whren , 517 U.S. at 812-13 , 116 S. Ct. at 1774 . The Whren opinion characterized Robinson as holding that a "traffic-violation arrest ... would not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search.' " Id. (quoting Robinson , 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1 ). But the Robinson footnote cited in Whren did not present a holding at all but only a statement of the government's position in the matter. Robinson , 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1. Indeed, a careful reading of the footnote reveals that the pretextual argument was abandoned in the Supreme Court. Id. Further, as Professor Wayne R. LaFave points out, the custodial arrest in Robinson "was not a departure from established *914 police department practice." 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 1.4(f), at 182 (5th ed. 2012) [hereinafter LaFave, Search & Seizure ] (quoting Robinson , 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1 ). Robinson "leave[s] for another day questions which would arise on facts different from these." 414 U.S. at 221 n.1, 94 S. Ct. at 470 n.1.

The Whren Court also relied upon Gustafson . Whren , 517 U.S. at 813 , 116 S. Ct. at 1774 . In Gustafson , however, "the petitioner ... fully conceded the constitutional validity of his custodial arrest." 414 U.S. at 267, 94 S. Ct. at 492 (Stewart, J., concurring). The Supreme Court does not decide issues abandoned by the parties.

Another case relied upon was Villamonte-Marquez . Whren , 517 U.S. at 812 , 116 S. Ct. at 1774 . That case relied heavily on the need to protect our nation's borders. See Villamonte-Marquez , 462 U.S. at 588 -89 , 103 S. Ct. at 2579 -80 . Unlike our cars and homes, there is small expectation of privacy at border locations under United States Supreme Court precedent. See id. In any event, the case did not involve an allegation of pretext but instead involved the construction of a statute. Id. at 580-81 , 103 S. Ct. at 2575 .

In sum, the appeal to authority in Whren fails. That is not to say, of course, that the Supreme Court's caselaw required the question be resolved in Whren's favor. But what the case required was a thoughtful review of the purposes of the Fourth Amendment, a balanced review of the caselaw, and a careful application of legal principles to the facts at hand. That simply did not happen in Whren .

2. The pervasiveness of automobile regulation makes unregulated government authority to conduct traffic stops the equivalent of a general warrant. Ordinarily, the requirement of probable cause or reasonable suspicion serves as a check on arbitrary search and seizure. This particularized protection against arbitrariness, however, is absent in the context of automobile regulation. As has been recognized by many authorities, just about any motorist who police follow for any distance will commit some kind of minor traffic violation that could be used as a springboard for a pretextual stop.

As has been noted in the commentary, "If several, or in the case of traffic offenses, most, persons are committing the same offense and practical realities preclude an officer from stopping them all, then probable cause does not meaningfully limit an officer's discretion." Wesley MacNeil Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling , 74 Tul. L. Rev. 1409 , 1414 (2000) [hereinafter Oliver]. Professor LaFave is particularly critical:

[G]iven the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, [the requirement of a traffic violation to conduct a stop] hardly matters, for ... there exists "a power that places the liberty of every man in the hands of every petty officer," precisely the kind of arbitrary authority that gave rise to the Fourth Amendment.

LaFave, Search and Seizure § 1.4(e), at 173 (quoting John Adams, Abstract of the Argument, in 2 Legal Papers of John Adams 134, 141-42 (L. Kinvin Worth & Hiller B. Zobel eds., 1965)).

The cases demonstrate that LaFave is right. The cases reveal pretextual stops for minor violations, such as driving sixty-eight miles per hour in a sixty-five miles per hour zone, United States v. Navarro-Camacho , 186 F.3d 701 , 703, 705 (6th Cir. 1999), displaying a bent but readable license *915 plate on the back of a boat trailer, Kehoe , 521 So. 2d at 1095 , failing to signal while changing lanes, Scopo , 19 F.3d at 779 -80 , driving with an apparently defective windshield wiper when it was not raining, State v. Daniel , 665 So. 2d 1040 , 1041, 1046 & n.7 (Fla. 1995), overruled on other grounds by Holland v. State , 696 So. 2d 757 , 759 (Fla. 1997), displaying a license plate with the state name and motto partially obscured, United States v. Contreras-Trevino , 448 F.3d 821 , 824-25 (5th Cir. 2006), driving with a turn signal activated and not turning after the first three opportunities to do so, People v. Haywood , 407 Ill.App.3d 540 , 348 Ill.Dec. 605 , 944 N.E.2d 846 , 849-50 (2011), and driving once over a fog line "by approximately eight inches for about five seconds," Dods v. State , 240 P.3d 1208 , 1209 (Wyo. 2010). Indeed, there is caselaw suggesting that driving in complete compliance with traffic regulations is so unusual that officers consider it suspicious and a factor in a drug-courier profile. Smith , 799 F.2d at 707 -08 .

In Iowa, the traffic code

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