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IN THE SUPREME COURT OF IOWA
No. 10â1454
Filed January 20, 2012
STATE OF IOWA,
Appellant,
vs.
ROBERT DALE LOWE, JR.,
Appellee.
Appeal from the Iowa District Court for Polk County, D.J. Stovall,
Judge (July 20, 2010 suppression ruling) and Joel D. Novak, Judge
(August 30, 2010 suppression ruling).
The Supreme Court granted the partiesâ cross-applications for
discretionary review of the district courtâs grant and denial of the motions
to suppress. DECISION OF THE DISTRICT COURT AFFIRMED ON
APPEAL; DECISION OF THE DISTRICT COURT AFFIRMED ON
CROSS-APPEAL AND CASE REMANDED.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, John P. Sarcone, County Attorney, and
Daniel C. Voogt, Assistant County Attorney, for appellant.
Nicholas A. Sarcone and Dean A. Stowers of Stowers Law Firm,
West Des Moines, for appellee.
2
ZAGER, Justice.
The State appeals an adverse ruling on a motion which suppressed
statements made by the defendant, Robert Lowe, as having been made in
response to a promise of leniency, thereby rendering them involuntary.
Lowe cross-appeals, claiming the district court erred in overruling his
motion to suppress his statements as a violation of Miranda and, more
specifically, as a violation of the ban on questioning a defendant after
that defendant has invoked his right to counsel. Lowe further claims the
district court erred in not suppressing all evidence found at the scene
because the consent that led to the search of the premises was only
obtained by prior police illegality. Lowe also claims that the consent to
search provided by Cody Audsley was not voluntary and that heâLoweâ
was removed from the area to prevent him from objecting to any search,
in violation of the Fourth Amendment. We hold that the search was
proper and that the motion to suppress the physical evidence obtained
as a result of the search was properly denied. We further hold that
because there was not sufficient exigency to justify the police reinitiating
questioning of Lowe following Loweâs request for counsel, the public
safety exception to Miranda does not apply under the facts of this case,
and therefore, Loweâs statements were properly suppressed.
I. Background Facts and Proceedings.
At 10:00 p.m. on April 6, 2010, dispatch informed Detective Corey
Schneden of the Ankeny Police Department that a female (Cindy) was
being treated in the emergency room of a local hospital for a drug
overdose. Schneden was advised the female likely ingested the drugs at
Cody Audsleyâs residence, a mobile home in Ankeny. Schneden went to
Audsleyâs residence for the purpose of interviewing her. He was
accompanied by Officers Webb and Ripperger, both of whom were in
3
uniform. Schneden was not in uniform, but was wearing a police
department T-shirt, as well as a badge and gun.
Upon arrival, Schneden approached the main entrance on the
south side of the mobile home. Ripperger was directly behind Schneden,
and Webb was on a gravel drive east of and adjacent to Audsleyâs mobile
home. Webb went to the east side of the mobile home to prevent anyone
from fleeing when Schneden knocked on the door. Webb was standing
on a gravel driveway between Audsleyâs mobile home and another mobile
home and was about a foot away from a window with a partially open
blind which was broken or bent. When Schneden knocked on the door,
Webb observed Audsley retrieve something from the kitchen table and
place it in a kitchen cabinet. Webb also observed Lowe run towards the
back of the residence and out of view. At this point, Webb went to the
yard on the north side of the residence to determine whether Lowe had
fled.
After Schneden knocked on the door, he identified himself as a
police officer. Schneden asked for, and received, Audsleyâs permission to
enter the residence. As he entered, he introduced Ripperger and asked if
they could ask Audsley a few questions. Audsley agreed. At this point,
Webb was advised that both residents were now in the living area, so
Webb joined Schneden and Ripperger in the residence. Audsley never
gave Webb explicit permission to enter, but never asked him to leave. At
no point did Audsley ask the officers to leave.
After entering, the police encountered Lowe and asked him to
identify himself. Lowe produced identification and stated he lived with
his mother elsewhere in Ankeny. He specifically denied that he lived at
Audsleyâs residence. However, Lowe also stated that he was staying at
Audsleyâs and that he was a guest. Later on in the evening, Lowe was
4
allowed to change from gym shorts into sweatpants. Officers later found
male clothing in a bedroom of the mobile home.
In response to questioning, Audsley denied using drugs with Cindy
that day. During this initial questioning, Audsley was repeatedly
reminded of the very serious medical condition Cindy was facing and was
also confronted with Webbâs observation of Audsley grabbing something
from the table and placing it in the kitchen cabinet. During this time,
officers asked her at least three times for consent to search the
residence. While she did not expressly deny consent the first two times,
she said no on the third occasion. At that point, Schneden asked Lowe
to step outside with him to talk out of Audsleyâs presence. Schneden was
outside with Lowe for only a few minutes. He asked Lowe if he knew
what drugs Cindy might have taken earlier that day and explained that
Cindy was in need of medical treatment and that the officers needed to
know what she might have taken. According to Schneden, Lowe was free
to leave at any time. Lowe denied having knowledge of any drugs Cindy
might have taken.
While Schneden and Lowe were outside, Ripperger and Webb
continued their questioning of Audsley. Webb told Audsley that the
officers needed to know what Cindy had taken and that Cindyâs life might
be in danger if Audsley did not tell them what she knew. Audsley then
responded, âWe smoked weed together. Do you want it?â At that point,
Ripperger asked Audsley where the marijuana was, and Audsley pointed
to a Del Monte fruit can on the coffee table. Around this time, Schneden
and Lowe reentered the residence, and Ripperger told Schneden that
Audsley admitted smoking marijuana earlier in the day with Cindy and
that there was marijuana hidden in the fruit can on the table. With
Audsleyâs permission, Webb picked the fruit can up. He then asked
5
Audsley for consent to open it, which he received. After unscrewing a
false bottom on the can, Webb found a pipe and marijuana. Once the
marijuana was discovered, Audsley and Lowe were not free to leave.
Audsley then refused to consent to a search of the rest of the residence.
Around midnight on April 6, 2010, Schneden contacted Detective
Matthew Jenkins, a member of the Ankeny Police Department assigned
to the Mid-Iowa Narcotics Task Force, to assist in obtaining a search
warrant for Audsleyâs mobile home. The probable cause for the search
warrant was the discovery of the marijuana and drug paraphernalia. 1
The police did not begin searching the residence until 3:00 a.m. when
Jenkins arrived with the search warrant. At that time, Lowe and Audsley
were inside the residence and neither was in handcuffs. Jenkins
provided each of them with the Miranda warning. While Audsley agreed
to speak with Jenkins, Lowe immediately requested to speak with
counsel. Lowe was then placed in a squad car. Audsley remained in the
mobile home during the search.
Sometime during the search, Schneden entered the bathroom area
and found what he believed to be components of a meth lab. This was
not an active meth lab, and none of the officers reported smelling any
odors associated with methamphetamine production. After being advised
of this discovery, Jenkins became concerned for the safety of his officers
and the neighbors. He spoke to Audsley, who confirmed that Lowe had
been involved in manufacturing methamphetamine in the past, but it
was not to be made in the residence. Officers were told to suspend their
1The record does not contain the application for the search warrant or the
search warrant itself. However, both Lowe and the State agree that the marijuana and
drug paraphernalia found as a result of the consensual search formed the basis for the
search warrant.
6
search until Jenkins could speak to Lowe about whether there was
anything dangerous in the residence.
Jenkins then went back to the squad car, opened the door, and
reiterated to Lowe that he did not have to speak with him, that he was
ânot asking to get you [Lowe] in trouble,â but that he did not want to find
any anhydrous. Lowe confirmed that there was nothing active going on
at that time, but Lowe stated that there was an empty anhydrous tank in
the shed and that it was his, not Audsleyâs.
On May 4, 2010, Lowe and Audsley were charged with conspiracy
to manufacture a controlled substance, manufacturing a controlled
substance, possession of anhydrous ammonia with intent to
manufacture a controlled substance, and possession of lithium with
intent to manufacture a controlled substance. Lowe moved to suppress
his statements to police, alleging the statements were elicited in violation
of his rights under the Fifth Amendment of the United States
Constitution and article I, section 9 of the Iowa Constitution when
Jenkins reinitiated questioning after Lowe invoked his right to counsel.
After an evidentiary hearing, the district court denied the motion, finding
that Jenkins reinitiated questioning out of a concern for officer safety
and that such questioning was proper under a public safety exception to
Miranda.
Lowe filed another motion to suppress on June 17, alleging the
search warrant for Audsleyâs mobile home was based on information
obtained by a prior illegal search in violation of the Fourth Amendment
to the United States Constitution and article I, section 8 of the Iowa
Constitution. After an additional evidentiary hearing, the district court
overruled Loweâs second motion, finding Audsleyâs consent was freely and
voluntarily given and there was no evidence of coercion in the record.
7
The next day, Lowe moved to enlarge the findings and rulings, claiming
the court insufficiently supported its findings and did not rule on all the
issues before it, namely whether Audsleyâs consent was induced by a
prior illegal search. The motion to enlarge the findings and rulings was
overruled by the motion judge. A motion to reconsider this ruling was
brought before the trial judge who also denied it. Further motions on the
issues involving the search and seizure of physical evidence were also
denied.
On July 7, Lowe filed a renewed motion to suppress his statements
and asked the court to reopen the record based on newly received
recordings of his conversation with Jenkins. This motion additionally
argued the statements should be suppressed as a promise of leniency
under State v. McCoy, 692 N.W.2d 6 (Iowa 2005). Lowe argued his delay
in asserting his claim of promissory leniency was based on the Stateâs
failure to deliver the audio recordings of his exchange with Jenkins in a
timely fashion.
In its resistance to the motion, the State argued the statements
were not barred as a Miranda violation based on the public safety
exception. The State also argued Loweâs July 7 motion was untimely
because it was not brought within forty days of arraignment, as required
under Iowa Rule of Criminal Procedure 2.11(4), and any delay in Lowe
receiving the recordings of his conversation with Jenkins was irrelevant
because Lowe had a duty to disclose these facts to his attorney. After a
hearing, the district court ruled that Jenkins was concerned for the
safety of himself and others, so the public safety exception to Miranda
would apply. However, the court ruled Jenkinsâs statement, âIâm not
asking to get you in trouble,â was a promise of leniency that Lowe would
receive some benefit for his response and that led Lowe âto believe that if
8
he answered the detectiveâs questions he could do so without fear of his
answers being used against him.â Accordingly, the district court granted
Loweâs motion to suppress the statements made to Jenkins as a promise
of leniency.
The State sought discretionary review of the ruling on the
suppression of Loweâs statements, and Lowe filed a cross-application for
discretionary review of the rulings of the district court regarding the
search and seizure of physical evidence. We now consider the merits of
each partyâs arguments.
II. Standard of Review.
Lowe claims that the search was conducted without Audsleyâs valid
consent, that the search was conducted without his consent, and that
these actions violate the state and federal constitutions. Lowe also
claims the police reinitiated questioning of him after he invoked his right
to counsel. Our review of constitutional issues is de novo. State v. Lane,
726 N.W.2d 371, 377 (Iowa 2007); see also State v. Palmer, 791 N.W.2d
840, 844 (Iowa 2010) (holding we review de novo a district courtâs
decision to admit statements allegedly obtained in violation of the
accusedâs constitutional rights). This review requires us to make an
independent evaluation of the totality of the circumstances as shown by
the entire record, including the evidence presented at the suppression
hearings. Id. Because of the district courtâs opportunity to evaluate the
credibility of witnesses, we will give deference to the factual findings of
the district court, but we are not bound by them. Id.
Lowe argues the evidence against him should be suppressed under
both the state and federal constitutions. However, âwe generally decline
to consider an independent state constitutional standard based upon a
mere citation to the applicable state constitutional provision.â State v.
9
Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially
concurring). 2
III. The Physical Evidence Obtained in the Home and Shed.
Lowe claims that the physical evidence found in Audsleyâs mobile
homeâthe marijuana, pipe, and the precursor substancesâmust be
suppressed because the evidence was obtained in violation of the Fourth
Amendment to the United States Constitution and article I, section 8 of
the Iowa Constitution. Though neither party provided the search
warrant application to aid in our review, both parties agree, and the
district court found, that the marijuana formed the basis for the search
warrant. Therefore, if Audsleyâs consent was invalid based on either the
exploitation of a prior illegal search or seizure, or because Audsleyâs
consent was not voluntary, then there is no other basis for the warrant
in the record, and the physical evidence obtained pursuant to that
search warrant must be suppressed.
Lowe also points to Georgia v. Randolph, 547 U.S. 103, 126 S. Ct.
1515, 164 L. Ed. 2d 208 (2006), and claims that under Randolph, the
police were required to obtain his consent in order to use the evidence
against him. Because they did not obtain his consent, Lowe argues that
the marijuana and any evidence recovered pursuant to the search
warrant predicated on the discovery of the marijuana cannot be used
against him.
Lowe claims that Audsleyâs consent was invalid. The Supreme
Court has stated that âFourth Amendment rights are personal rights
2Onappeal, Lowe only makes the argument that the Iowa Constitution should
be interpreted differently than the United States Constitution when he claims the police
should have been required to obtain his consent before searching the fruit can.
Therefore, unless we indicate otherwise, we assume for the purposes of this appeal that
the United States Constitution and the Iowa Constitution should be interpreted in an
identical fashion. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).
10
which . . . may not be vicariously asserted.â Rakas v. Illinois, 439 U.S.
128, 133â34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387, 394 (1978) (citation
and internal quotation marks omitted); see also State v. Naujoks, 637
N.W.2d 101, 106 (âThe right afforded by the Fourth Amendment is
specific to the individual and may not be invoked by third persons.â). In
order to object to the evidence on constitutional grounds, Lowe must
show that his own constitutional rights, under either the state or federal
constitutions, have been violated. If he can show that his rights have
been violated, then â[w]e are not inclined to require defendant to make an
independent showing of standing.â State v. Henderson, 313 N.W.2d 564,
565 (Iowa 1981); see also Minnesota v. Carter, 525 U.S. 83, 87â88, 119 S.
Ct. 469, 472, 142 L. Ed. 2d 373, 379 (1998) (noting that the âstandingâ
doctrine was rejected in Rakas and âin order to claim the protection of
the Fourth Amendment, a defendant must demonstrate that he
personally has an expectation of privacy in the place searched, and that
his expectation is reasonableâ). Loweâs ability âto assert a Fourth
Amendment violation will stand or fall on [his] ability to show a
substantive violation which in turn is based on a showing of a legitimate
expectation of privacy in the particular area searched or the particular
objects seized.â Henderson, 313 N.W.2d at 565 (citing Rakas, 439 U.S.
at 148, 99 S. Ct. at 432, 58 L. Ed. 2d at 404). 3
We employ a two-step approach to determine whether there has
been a violation of the Fourth Amendment or article I, section 8 of the
Iowa Constitution. State v. Fleming, 790 N.W.2d 560, 564 (Iowa 2010);
see also Naujoks, 637 N.W.2d at 106; State v. Halliburton, 539 N.W.2d
3We note that it is not necessary for a defendant to make an independent
showing of standing because â[t]he standing issue inheres in the [determination of a
legitimate expectation of privacy].â State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984).
11
339, 342 (Iowa 1995); State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984). To
satisfy the first step, an individual challenging the legality of a search
has the burden of showing a legitimate expectation of privacy in the area
searched. Fleming, 790 N.W.2d at 564.
The determination of whether a person has a legitimate
expectation of privacy with respect to a certain area is made
on a case-by-case basis, considering the unique facts of each
particular situation. The expectation must also be one that
society considers reasonable.
Id. (citations and internal quotation marks omitted). Therefore, as a
preliminary matter, we must determine whether Lowe had a reasonable
expectation of privacy in Audsleyâs mobile home. An expectation of
privacy must be subjectively and objectively legitimate and will be
determined âon a case-by-case basis.â Naujoks, 637 N.W.2d at 106. An
overnight guest has a legitimate expectation of privacy in his hostâs
home. Id. Leaving possessions in anotherâs residence and making
frequent visits are also factors that favor a legitimate expectation of
privacy. State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004).
Although Lowe denied living at Audsleyâs residence when the
officers first entered, it appeared to the officers that Lowe was a guest of
Audsleyâs. Lowe had clothes and other items of a personal nature in
Audsleyâs mobile home. Additionally, according to the minutes of
testimony, Lowe had been staying there for about six months. Based on
these unique subjective and objective facts, we conclude Lowe had a
legitimate expectation of privacy in Audsleyâs mobile home.
Since Lowe has shown a legitimate expectation of privacy in
Audsleyâs mobile home, we must move to step two of the analysis in
which we must decide whether the State unreasonably invaded the
protected interest. Fleming, 790 N.W.2d at 564; see also Naujoks, 637
12
N.W.2d at 106. âWarrantless searches are per se unreasonable if they do
not fall within one of the well-recognized exceptions to the warrant
requirement.â Naujoks, 637 N.W.2d at 107. Consent searches are one of
these exceptions. Id. To be valid, consent must be voluntary. See State
v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001).
The officers did not have a warrant when they first approached
Audsleyâs residence, but they received Audsleyâs consent to enter the
mobile home and ultimately to search the fruit can. Lowe claims that
Audsleyâs consent was the exploitation of prior police illegality, making it
âfruit of the poisonous tree.â See Lane, 726 N.W.2d at 383. Lowe also
claims Audsleyâs consent was not voluntary. If either of these claims is
accurate, then Audsley did not validly consent to the search of the fruit
can. The State has not provided any basis other than Audsleyâs consent
to justify the search. If Audsleyâs consent was involuntarily obtained,
then the police would have unreasonably searched her residence which,
as stated above, is an area where Lowe had a legitimate expectation of
privacy. We now turn to Loweâs challenges to Audsleyâs consent.
A. Was Audsleyâs Consent to Search the Result of Prior Police
Illegality? Around 11:00 p.m., Webb received consent to search what
appeared to be a can of Del Monte fruit cocktail that was sitting in
Audsleyâs living room. The fruit can contained a false bottom which held
marijuana and a pipe. The State asserts Audsley voluntarily consented
to the search. Lowe does not dispute that Audsley told the officers they
could search the fruit can. Lowe asserts that Audsleyâs consent was only
produced by exploiting prior police illegality, that her consent was not
voluntary, and that even if it were, the evidence is still inadmissible
against Lowe because he did not consent to the search.
13
Lowe points to two actions he claims constitute illegal searches
and seizures prior to the consensual search of the fruit can. First, he
claims the police searched the mobile home illegally when Webb looked
in the windows prior to the officers knocking at the door. Second, he
claims the police seized Audsley and him without reasonable suspicion
prior to the discovery of the marijuana when they exceeded the scope of
Audsleyâs consent to a knock and talk and âtook overâ the mobile home.
1. The activities of the police prior to entering the mobile home. We
turn first to Loweâs contention that Webb searched the mobile home by
looking in the windows. A person in his dwelling with the window
coverings almost closed certainly has some expectation of privacy. State
v. Davis, 228 N.W.2d 67, 72 (Iowa 1975), overruled on other grounds by
State v. Hanes, 790 N.W.2d 545, 550 & n.1 (Iowa 2010). However, a
search only occurs if there is a violation of an expectation of privacy âthat
society considers reasonable.â State v. Breuer, 577 N.W.2d 41, 46 (Iowa
1998). Regarding driveways, we have noted that â[i]t is common for
solicitors, operators of motor vehicles, and other individuals to enter
unsecured driveways of private residences.â State v. Lewis, 675 N.W.2d
516, 523 (Iowa 2004). Therefore, a defendant âcould not have had a
reasonable expectation of privacy in his drivewayâ and the Fourth
Amendment would not prevent the police from entering it. Id.; see also
State v. Dickerson, 313 N.W.2d 526, 531â32 (Iowa 1981).
Webb looked through Audsleyâs windows while he was standing on
the driveway of her mobile home. We have distinguished between merely
looking into a protected area from a public vantage point and making
observations with the naked eyeâwhich is not a searchâand actually
entering the protected area without the consent of the owner and
conducting a warrantless search. See Lewis, 675 N.W.2d at 523â24.
14
The police are free to observe areas they may not constitutionally enter
without a warrant or some other recognized exception to the warrant
requirement. See id. Officers entering areas that are open to the public
do not wear a blindfold. Dickerson, 313 N.W.2d at 531. So long as
officers make their observations from a location where they have a right
to be, they have âa right to see what [is] visible from that position.â Id. at
532; see also Lewis, 675 N.W.2d at 523 (â[T]here is no legitimate
expectation of privacy and no search within the meaning of the Fourth
Amendment when authorities can view an activity occurring in the
curtilage from a public area.â).
In applying these legal principles to the facts of this case, we must
analyze the significance of Webbâs location when he observed Audsley
place something in the kitchen cabinet and saw Lowe run to the back of
the mobile home. Lowe claims that this observation constituted an
illegal search and that it was later exploited to gain Audsleyâs consent.
Webb testified that he was outside the east window of the mobile home
when he saw Audsley put something in the cabinet, that he was standing
on the gravel drive on the east side of the house when this occurred, and
that the blind was partially open so that he could readily see into the
residence. As Audsley was placing something in the cabinet, Webb
observed Lowe run to the back of the residence. It was only at that point
that Webb entered the backyard. We need not determine whether
entering the backyard was an invasion of a legitimate expectation of
privacy because Webb did not confront Audsley or Lowe with any
observations he made from that vantage point. Loweâs claim is that
confronting Audsley with the fact that Webb had seen her put something
in the cabinet was an exploitation of prior police illegality. We disagree.
When Webb observed Audsley in the kitchen, he was standing on the
15
gravel driveway on the east side of the mobile home. This was a public
vantage point where the officer had a right to be, and an observation
made with the naked eye from that point is not a search. Lewis, 675
N.W.2d at 523. Since these observations were not illegal searches,
confronting Audsley with them could not be the exploitation of a prior
illegal search.
2. The officersâ alleged seizure of Lowe and Audsley after entering
the mobile home. Lowe contends that the police detained both Audsley
and him without reasonable suspicion and in violation of his Fourth
Amendment rights and that this detention was exploited to gain
Audsleyâs later consent to search. As a preliminary matter, we note that
ordinarily, a defendant cannot challenge the seizure of another person. 6
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.3, at 129 (4th ed. 2004) [hereinafter LaFave] (âAs for
seizure of a person, it is clear that one person lacks standing to object to
the seizure of another.â). This is because âa defendant can urge the
suppression of evidence obtained in violation of the Fourth Amendment
only if that defendant demonstrates that his Fourth Amendment rights
were violated by the challenged search or seizure.â United States v.
Padilla, 508 U.S. 77, 81, 113 S. Ct. 1936, 1939, 123 L. Ed. 2d 635, 640
(1993). The mere seizure of another person would not, ordinarily, violate
the Fourth Amendment rights of a third party. In this case, however,
Lowe alleges that Audsley was improperly seized and that prior illegal
seizure was exploited to gain her consent to search the fruit can. Lowe is
therefore permitted to challenge the seizure of Audsley because, if
Audsley was illegally seized and that seizure was exploited to gain her
consent, then her consent would be fruit of the poisonous tree, making it
invalid. If her consent was invalid, then the police would have
16
unreasonably searched an area where Lowe had a legitimate expectation
of privacy, therein violating his rights under the state and federal
constitutions. 4
âWhether a âseizureâ occurred is determined by the totality of the
circumstances.â State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008). âThe
Supreme Court has long recognized that not all police contacts with
individuals are deemed seizures within the meaning of the Fourth
Amendment.â State v. Smith, 683 N.W.2d 542, 546 (Iowa 2004) (citation
and internal quotation marks omitted). Encounters with the police
remain consensual â[s]o long as a reasonable person would feel free to
disregard the police and go about his business.â Id. at 547 (citation and
internal quotation marks omitted). Generally, police questioning, and
the responses it elicits, does not constitute a seizure. Wilkes, 756
N.W.2d at 843; State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004).
For a seizure to occur, there must be âobjective indices of police
coercion.â Wilkes, 756 N.W.2d at 843. The fact that an officer shows a
badge, is âvisibly armed,â or is in uniform has been given little weight in
the analysis. See id. at 843. In order to maintain the consensual nature
of the encounter, there should be âno show of authority, no intimidation,
and no use of physical force by the officers in their encounter.â Reinders,
690 N.W.2d at 83. Other signs of a seizure would be âevidence the
[officer] used a commanding or threatening tone, displayed a weapon, or
touched [the suspect].â Smith, 683 N.W.2d at 547. In sum, we must
determine whether the officers impaired Audsleyâs ability to control her
4From this point on, we will only deal with the alleged seizure of Audsley. Lowe
never consented to the search of the fruit can, making it impossible for the police to
exploit a seizure of Lowe to gain his consent.
17
own residence or whether the âofficers simply engaged [her] in
conversation.â Reinders, 690 N.W.2d at 83.
When the officers arrived at Audsleyâs residence, Schneden
identified himself as a police officer and asked for permission to enter in
order to question Audsley regarding a woman who had overdosed on
drugs. Audsley specifically consented to Schneden and Rippergerâs
entry, and she never objected to Webb entering immediately thereafter.
Audsley implicitly consented to Webbâs entry. Audsley refused to
consent to a search of her entire residence, but never asked the officers
to leave. The only instruction Audsley ever gave the officersâthat they
did not have permission to search her entire residenceâwas followed.
Schneden characterized his interaction with Lowe and Audsley as
âconducting an interview.â During the course of that interview,
Schneden took down Audsleyâs information, recorded Loweâs information
from his identification card, and asked for both of their phone numbers,
which they provided without objection. During the course of the
interview, Audsley willingly shared her interactions with Cindy during
the day. Schneden then asked questions about her relationship with
Cindy. He also informed Audsley that Cindy stated that she had
consumed something she had gotten from Audsley earlier that day.
Audsley denied that she had given Cindy anything illegal, but there is no
evidence that the officers were lying about the statements Cindy made at
the hospital or her current medical condition. Audsley admitted that she
knew Cindy smoked marijuana, repeatedly denied giving Cindy anything,
and denied having any drugs in the mobile home. She did not allow the
officers to search because she felt there was no reason to. Webb then
confronted Audsley with his observations that she hid something when
the officers knocked on the door. When Audsley denied putting
18
something in the cabinet, Webb stated, âDonât lie to me, âcause I was
standing right there at the window and watched you do it.â
At that point, Lowe was asked to go outside with Schneden to
answer a few questions about his interactions with Cindy. While Lowe
and Schneden were outside, Webb and Ripperger continued to question
Audsley. Audsley denied putting anything in the cabinet, and Webb
asked why she was lying to him. Webb or Ripperger told Audsley, âThe
thing is, I donât give a shit about arresting you; I donât give a shit about
charging you,â but that the doctors needed to know what Cindy took or
âshe may die from it.â One of the officers reminded Audsley that Cindy
indicated she got something from Audsley earlier that day. At that point,
Audsley stated, âWe smoked weed together. Do you want it?â Lowe and
Schneden then reentered the mobile home. At this point, Audsley gave
Webb permission to pick up and open the fruit can containing the
marijuana and drug paraphernalia. Schneden asked if the substance
was only marijuana, and Audsley confirmed that it was. Audsley then
refused to consent to a search of her entire residence. Webb and
Schneden continued to try to find out if Audsley knew what else Cindy
had taken, in addition to smoking marijuana, and Webb emphasized the
danger that Cindy was in. However, these questions occurred after
Audsley consented to the search of the fruit can, and therefore, they
would not impact the validity of the consent that Audsley had already
given.
During this encounter, all three officers were armed and had
badges, and two were in uniform. The officers never drew their weapons
or touched Audsley, and they did not threaten her with arrest. The
officers questioned Audsley regarding the overdose, and repeatedly
reminded her that if she were not forthcoming with any information she
19
had, it could lead to further health problems for Cindy. There is no
evidence in the record that this claim was false. While the officers may
have raised their voices, they did not use threats, intimidation, or
physical force in such a way that would have impaired Audsleyâs ability
to control her own residence. There were no âcommandsâ to Audsley that
she was required to tell the officers what they wanted to know, only
requests for information. There were no commands to Lowe that would
give Audsley the impression she had been seized. Schneden asked Lowe
to step outside with him, and Lowe willingly did so. There is no evidence
either Lowe or Audsley expressed any objection to Schnedenâs request to
talk to Lowe outside Audsleyâs presence. 5
After reviewing the totality of the circumstances, we determine that
Audsley was not âseizedâ or detained in violation of the Fourth
Amendment. Audsley allowed the police into her home and voluntarily
answered their questions. She willingly discussed her interactions with
Cindy throughout the day and allowed Schneden to read text messages
off of her phone. The officers were, as one might suspect, armed and
wearing badges and uniforms. This does not transform a consensual
encounter with the police into a detention. Audsley never asked the
police to leave, and the one limit she placed on police activity inside her
homeâthat the officers not search the entire residenceâwas respected
until the officers obtained a search warrant. 6 Under the facts of this
5We also note that, despite the claims in his brief, Lowe was not directed where
to sit and officers did not accompany him while he changed into sweatpants, until after
the marijuana was discovered. These actions, therefore, could not have led Audsley to
feel as though she had been âseizedâ by the police prior to her consent to search.
6Loweâsmotion to suppress sought to exclude evidence obtained not only after
consent to search was obtained, but also after police illegality. We have stated the
following:
âWhen a claim of consensual search is preceded by illegal police action
. . ., the government must not only show the voluntariness of the
20
case, we cannot conclude that there was any prior illegal police action
leading up to the consent obtained from Audsley.
B. Was Audsleyâs Consent to Search Voluntary? A warrantless
search conducted by free and voluntary consent does not violate the
Fourth Amendment. Reinier, 628 N.W.2d at 465 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043â44, 36 L. Ed. 2d
854, 858 (1973)). Consent is considered to be voluntary when it is given
without duress or coercion, either express or implied. See Schneckloth,
412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. This test
balances the competing interests of legitimate and effective police
practices against our societyâs deep fundamental belief that the criminal
law cannot be used unfairly. See id. at 224â25, 93 S. Ct. at 2046â47, 36
L. Ed. 2d at 861. Thus, the concept of voluntariness which emerges as
the test for consent represents a fair accommodation of these interests
and values. See id. at 229, 93 S. Ct. at 2048â49, 36 L. Ed. 2d at 864.
The State has the burden to prove the consent was voluntary, and
voluntariness is a â âquestion of fact to be determined from the totality of
all the circumstances.â â Lane, 726 N.W.2d at 378 (quoting Schneckloth,
412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 862). âThe State is
required to establish the consent was voluntary by a preponderance of
the evidence.â Reinier, 628 N.W.2d at 465.
________________________________
subsequent consent under the totality of the circumstances, but must
also establish a break in the illegal action and the evidence subsequently
obtained under the so-called âfruit of the poisonous treeâ doctrine.
. . . Thus, there are two issues to analyze in a consent-to-search case
such as this: (1) voluntariness under the totality of the circumstances,
and (2) exploitation under the fruit of the poisonous tree doctrine.â
State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007) (citations omitted). The two concepts
are not the same. However, because we conclude that no prior illegal police action has
been established, we will focus on whether the consent was voluntary.
21
The question of voluntariness requires the consideration of many
factors, although no one factor itself may be determinative. See generally
4 LaFave, § 8.2, at 50â141 (discussing several factors bearing upon the
validity of consent). In determining whether consent is voluntary, courts
examine the totality of the circumstances, including relevant factors such
as:
â(1) the individualâs age and mental ability; (2) whether the
individual was intoxicated or under the influence of drugs;
(3) whether the individual was informed of [her] Miranda
rights; and (4) whether the individual was aware, through
prior experience, of the protections that the legal system
provides for suspected criminals. It is also important to
consider the environment in which an individualâs consent is
obtained, including (1) the length of the detention;
(2) whether the police used threats, physical intimidation, or
punishment to extract consent; (3) whether police made
promises or misrepresentations; (4) whether the individual
was in custody or under arrest when consent was given;
(5) whether consent was given in a public or in a secluded
location; and (6) whether the individual stood by silently or
objected to the search.â
United States v. Golinveaux, 611 F.3d 956, 959 (8th Cir. 2010) (citation
omitted).
There are several additional factors this court can consider when
determining whether consent is valid. â[L]imitations on the nature of the
crime under investigation and the objects sought by the searchâ can
minimize the seriousness of possessing drugs for personal use and may
subtly create a belief that there will be no consequences if the occupants
consent to a search. Reinier, 628 N.W.2d at 469. âThese comments by
police constitute a subtle form of deception with no reasonable basis.â
Id. However, a suspect acknowledging there are drugs in the houseâ
thereby giving the officer probable cause to obtain a search warrantâ
supports the contention that consent was voluntarily obtained. Id.; see
also 4 LaFave § 8.2(g), at 100. The court can also consider âknowledge
22
by the defendant of the right to refuse to consent . . . [and] whether
police asserted any claim of authority to search prior to obtaining
consent.â Reinier, 628 N.W.2d at 465 (citations omitted).
Audsleyâs consent was obtained after a âknock and talkâ encounter
with the officers. The âknock and talkâ procedure generally
involves officers knocking on the door of a house, identifying
themselves as officers, asking to talk to the occupant about a
criminal matter, and eventually requesting permission to
search the house. If successful, it allows police officers who
lack probable cause to gain access to a house and conduct a
search.
The âknock and talkâ procedure has generally been
upheld as a consensual encounter and a valid means to
request consent to search a house.
Id. at 466 (citations omitted). The State carries the burden of proving
there was valid consent both to enter the home and to conduct the
search. Id. at 467. The consent of officers to enter the mobile home in
this case is not reasonably in dispute.
Turning to our analysis of the relevant factors relating to Audsleyâs
consent, Audsley voluntarily allowed multiple police officers into her
home. She was twenty-eight years old, and there is nothing in the record
to show that she suffered from any mental abnormality or was otherwise
impaired by alcohol or drugs. The encounter with the police took place
âon the familiar surroundings of the threshold of [Audsleyâs] home.â See
State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011). Also, Audsley clearly
knew she had the right to refuse consent to search because at all times
she refused to consent to a search of her entire mobile home. 7
7Though both parties presented evidence and made arguments regarding the
voluntariness of Audsleyâs consent to search, neither party presented evidence on the
âknowingâ and voluntary nature of her consent (requiring law enforcement to advise her
of her right to refuse consent to search). Audsley did not testify at the suppression
hearings. There is no direct evidence of her knowledge of her right to refuse consent to
a search. This is not surprising considering Lowe only claims that Audsleyâs consent
23
Although Audsley admitted smoking marijuana earlier that day,
there was no evidence she was too impaired to consent, and her
discussions with the officers do not indicate the contrary. The officers
were at Audsleyâs residence because Cindy, her friend, was at the
hospital suffering from an overdose. Cindy had not told the doctors what
she took that day, but had indicated that, whatever the substance was,
she got it from Audsley. The officers reminded Audsley that if the
doctors knew everything that Cindy had taken, the doctors could treat
her more quickly. At that point, Audsley admitted she had been smoking
marijuana with her friend Cindy earlier that day and then asked the
officer, âDo you want it?â The officers then requested and received
consent to take possession of the fruit can and received further consent
to open the fruit can. Audsley did not testify at the suppression hearing.
Therefore, it is impossible to know whether Audsley admitted smoking
marijuana and allowed the police to examine it in order to help the police
determine what Cindy took in order to save Cindyâs life, or whether she
only consented to a search because her will had been overborne by the
officers. 8 Though a close question, we believe, based on the behavior of
the officers and the circumstances of the consent given, the former is a
more accurate portrayal of Audsleyâs consent than the latter.
The questioning of Audsley was of a short duration, perhaps
twenty minutes. There is no evidence of threats or physical intimidation.
________________________________
was involuntary, not that it was given without the knowledge she could refuse.
Moreover, Lowe has not asked this court to adopt a knowing and voluntary requirement
under article I, section 8 of the Iowa Constitution. Without a full development of the
legal and factual arguments on this issue, we decline to adopt a new standard regarding
consent in this case.
8It is certainly possible that Audsley would risk being charged with a minor drug
possession offense in an effort to help the police determine what was causing her
friendâs health problems.
24
The record does not disclose that the officers made any
misrepresentations regarding Cindyâs medical condition in order to
obtain Audsleyâs consent to search the fruit can. 9 The police never
claimed they could search without Audsleyâs consent. While officers did
ask for consent several times before the limited consent was granted, this
is just one of the factors which the court can rely on in determining
whether the ultimate search was voluntary. See United States v. Cedano-
Medina, 366 F.3d 682, 688 (8th Cir. 2004) (â[T]here is certainly no legal
rule that asking more than once for permission to search renders a
suspectâs consent involuntary, particularly where the suspectâs initial
response is ambiguous.â (citation and internal quotation marks omitted));
see also 4 LaFave § 8.2(f), at 97â100. Although we acknowledge prior
unreasonable searches can also be a factor in this analysis, we have
already concluded there was no prior misconduct by the police.
There are also factors that weigh against the voluntariness of
Audsleyâs consent. One of the officers told Audsley, âThe thing is, I donât
give a shit about arresting you; I donât give a shit about charging you,â
and that the doctors needed to know what Cindy took or âshe might die
from it.â These statements are troubling. In Reinier, we noted:
The officers told Reinier prior to obtaining her consent
that they were not looking for small quantities of drugs but
âmeth labsâ and âmajor dealers.â These comments bear
upon the voluntariness of the consent because they are
limitations on the nature of the crime under investigation
and the objects sought by the search. The comments also
tend to minimize the seriousness of possessing drugs for
personal use or casual sales, and subtly create a false belief
that no adverse consequences will result from a search if
there is no meth lab in the house and the occupants are not
9The officers repeatedly reminded Audsley of Cindyâs medical condition as a way
of pressuring her to tell them what she knew. However, there is nothing in the record
to indicate that these claims were inaccurate.
25
major dealers. These comments by police constitute a subtle
form of deception with no reasonable basis.
Reinier, 628 N.W.2d at 469 (citations omitted). Unlike in Reinier, the
officer made it clear that he was looking for small amounts of drugs that
would be used for personal use or casual sales. In that respect, he did
not âsubtly create a false belief that no adverse consequences will result
from a search if there is no meth lab in the house and the occupants are
not major dealers.â Id.
He did, however, tell Audsley that he was not interested in
charging her. The officers indicated early on that they were interested in
searching the entire premises in order to determine what drugs Cindy
might have taken. This officerâs comment, much like the officerâs
comment in Reinier, âtend[ed] to minimize the seriousness of possessing
drugs for personal use or casual sales.â Id. As such, it was a âsubtle
form of deception.â Id. However, the subtle use of deception to gain
consent to search is only one factor among many when evaluating the
totality of the circumstances to determine whether consent is voluntary.
Id. We will therefore consider Webbâs statement as one of many factors
in our analysis. 10
10Lowe has not claimed that the officerâs statement was a promise of leniency or
that such a promise might render Audsleyâs consent involuntary, regardless of other
factors. Instead, Lowe makes a generalized attack under the totality of the
circumstances. Accordingly, we have limited our analysis to the challenges actually
made by Lowe.
This approach is consistent with our past cases. Reinier treated a statement
that minimized the consequences of possessing small amounts of drugs as one factor in
the analysis of whether consent to search was voluntary. On other occasions, we have
held that statements made in response to a promise of leniency are per se inadmissible.
See State v. Kase, 344 N.W.2d 223, 225â26 (Iowa 1984). Evidence improperly obtained
in violation of the Fourth Amendment is excluded from the trial under the exclusionary
rule in an effort to deter police misconduct, âto provide a remedy for a constitutional
violation[,] and to protect the integrity of the judiciary.â Lane, 726 N.W.2d at 392; see
also State v. Cline, 617 N.W.2d 277, 289 (Iowa 2000), abrogated on other grounds by
State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). On the other hand, â[s]tatements
exacted by promissory leniency are not excluded on prophylactic grounds to deter police
26
While presenting a close case, in our review of the totality of the
circumstances, we conclude that Audsleyâs consent to search the can of
fruit was voluntary. 11
We now turn to the issue of whether Audsleyâs consent to search
the fruit can is binding on Lowe.
C. The Impact of Audsleyâs Consent on Lowe. We have long
held that a guest without exclusive possession of an area assumes the
risk that his host will allow others into the common areas. State v.
Knutson, 234 N.W.2d 105, 107 (Iowa 1975). Additionally, a cohabitant
assumes the risk that other cohabitants will consent to searches of
shared living areas. Id. (citing United States v. Matlock, 415 U.S. 164,
171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249â50 (1974)). If a person
with authority grants consent to search shared areas, that authority is
binding as to all other people who share the area. State v. Bakker, 262
N.W.2d 538, 546 (Iowa 1978).
Authority to consent includes not only actual, but also apparent,
authority. Illinois v. Rodriguez, 497 U.S. 177, 185â87, 110 S. Ct. 2793,
2799â2801, 111 L. Ed. 2d 148, 159â60 (1990). Apparent authority will
________________________________
misconduct; they are excluded on grounds that statements exacted under such
circumstances are unreliable.â Kase, 344 N.W.2d at 226. When a statement is made in
response to a promise of leniency, the statementâs âprobative value, if any exists, is
substantially outweighed by the danger of confusion of issues and would be misleading
to the jury under Iowa rule of evidence 403.â State v. McCoy, 692 N.W.2d 6, 28 (Iowa
2005) (citation and internal quotation marks omitted). When reviewing a suspectâs
consent to search the totality-of-the-circumstances test is used, and under that test,
whether an officer has minimized the seriousness of possessing drugs is one factor
among many that the court must consider.
11We recently decided the case of State v. Pals, 805 N.W.2d 767 (Iowa 2011).
While on its face it may appear that the decision we make today is inconsistent with our
decision in Pals, the cases are clearly distinguishable. Pals involved the âinherently
coerciveâ setting of a traffic stop where âPals found himself seized in the front seat of a
squad car with his own vehicle parked on the side of the public highway.â Id. at 782â
83. We noted the difference between a request for consent during a traffic stop and âan
encounter on the familiar surroundings of the threshold of oneâs home.â Id. at 782.
27
validate a search where officials âenter without a warrant because they
reasonably (though erroneously) believe that the person who has
consented to their entryâ had the authority to do so. Id. at 186, 110 S.
Ct. at 2800, 111 L. Ed. 2d at 160. We apply an objective standard when
analyzing consent and ask âwould the facts available to the officer at the
moment . . . warrant a [person] of reasonable caution in the belief that
the consenting party had authority over the premises?â Id. at 188, 110
S. Ct. at 2801, 111 L. Ed. 2d at 161 (citations and internal quotation
marks omitted) (alteration in original).
The United States Supreme Court has recently announced a
narrow exception to the rule that a cotenantâs consent is binding on
other cotenants. Under the Fourth Amendment, âa physically present
co-occupantâs stated refusal to permit entry prevails, rendering the
warrantless search unreasonable and invalid as to him.â Randolph, 547
U.S. at 106, 126 S. Ct. at 1519, 164 L. Ed. 2d at 217. Even under this
rule, however, the police can only accord âdispositive weight to the fellow
occupantâs contrary indication when he expresses it.â Id. at 121â22, 126
S. Ct. at 1527, 164 L. Ed. 2d at 227 (emphasis added). The only possible
way in which a co-occupant could successfully invoke this protection
without being physically present and objecting would be if the police
have âremoved the potentially objecting tenant from the entrance for the
sake of avoiding a possible objection.â Id. at 121, 126 S. Ct. at 1527, 164
L. Ed. 2d at 226â27.
Audsley owned the mobile home where police initially obtained her
consent to enter. Additionally, the fruit can with the marijuana was
found in the common area of the mobile home sitting out on the table.
Not surprisingly, Lowe has not claimed that he was the exclusive owner
of the fruit can. Since the fruit can was located in the living room of her
28
home, Audsley had the actual and apparent authority to consent to a
search of it. There is no claim that any part of the mobile home was
exclusively Loweâs. Therefore, any areas of the mobile home where Lowe
could claim an expectation of privacy would be shared areas, and he
would have to expect Audsley could consent to searches of those areas.
Cf. Fleming, 790 N.W.2d at 565â67. Most importantly, despite being
present in the mobile home for all but a few minutes, Lowe never
objected to the entry by the police or the search of the fruit can. Further,
the record evidence in this case does not support a conclusion that Lowe
was removed from the premises for the improper purpose of his possible
objection to the entry by officers or the search of the fruit can. Lowe was
not âremovedâ by the police. He was asked to step outside, which he
willingly did. The police did not ask for consent to pick up or open the
fruit can until after Lowe had reentered the residence.
Lowe asks for a more expansive definition of âphysically presentâ in
the Randolph analysis under the Iowa Constitution. A more expansive
definition would not change our analysis. Loweâs claim under Randolph
fails because he failed to object, not because he was not âpresent.â
Lowe also asks this court to declare that article I, section 8 of the
Iowa Constitution requires the police obtain affirmative consent from all
physically present cotenants, as opposed to merely honoring their
affirmative objections. Randolph does not require this affirmative step.
In Randolph, the Court acknowledged âit is fair to say that a caller
standing at the door of shared premises would have no confidence that
one occupantâs invitation was a sufficiently good reason to enter when a
fellow tenant stood there saying, âstay out.â â Randolph, 547 U.S. at 113,
126 S. Ct. at 1522â23, 164 L. Ed. 2d at 221. The police should also be
required to follow this social norm:
29
Since the co-tenant wishing to open the door to a third
party has no recognized authority in law or social practice to
prevail over a present and objecting co-tenant, his disputed
invitation, without more, gives a police officer no better claim
to reasonableness in entering than the officer would have in
the absence of any consent at all.
Id. at 114, 126 S. Ct. at 1523, 164 L. Ed. 2d at 222.
The Supreme Court clearly noted it would only âafford[] dispositive
weight to the fellow occupantâs contrary indication when he expresses it.â
Id. at 121â22, 126 S. Ct. at 1527, 164 L. Ed. 2d at 227. The reason for
requiring a cotenant to actually voice his objection was that an
alternative rule ârequir[ing] the police to take affirmative steps to find a
potentially objecting co-tenant before acting on the permission they had
already receivedâ would âneedlessly limit the capacity of the police to
respond to ostensibly legitimate opportunities in the field.â Id. Lowe has
not provided us with any reason to interpret the Iowa Constitution any
differently. Just as the United States Supreme Court refused to require
the police to find every potential cotenant who may wish to object to the
search and obtain their consent, we will not require the police to obtain
the affirmative assent of every present cotenant prior to conducting a
search.
Nothing in this record would support the conclusion that Lowe was
removed from the premises to prevent him from objecting to the search.
Audsley had the authority to consent to the entry by police and the
limited search of the fruit can on the coffee table. Lowe was physically
present at the time, but did not object to the entry by police or the search
of the fruit can. Because Lowe did not object, Audsleyâs consent to
search is valid as to Lowe, and allowing the evidence found to be used
against him does not violate Loweâs rights under either the federal or
state constitutions.
30
D. Conclusion. Audsley validly consented to a search of a
common area in the mobile home she owned. The record evidence in this
case does not support the conclusion Lowe was removed by the police to
prevent his objection to the search. Lowe never objected to the search
even though he was physically present when the consent to search the
fruit can was given. The search of the fruit can with the false bottom
was valid.
Lowe also attempts to attack the search warrant that led to the
discovery of the other physical evidence the State seeks to use against
him. This is based on the claim that the marijuana which formed the
probable cause for the search warrant was the product of illegal police
action or involuntary consent. The parties agree, and the district court
found, that the marijuana found as a result of that search did in fact
supply the probable cause that supported the warrant application. Since
the consent that led to the discovery of the marijuana was not based on
any prior illegal police action, and Audsleyâs consent was voluntary, any
attack on the search warrant is without merit. The warrant was properly
obtained, and therefore the physical evidence seized as a result of that
warrant is admissible against Lowe.
IV. Loweâs Statements to Jenkins Following Loweâs Request
for an Attorney.
Upon his arrival with the search warrant, Jenkins read Audsley
and Lowe their Miranda warnings. Lowe immediately requested an
attorney, and he was placed in a squad car while the search of the
residence continued. Once officers discovered what they believed to be
components of a meth lab in the bathroom, Jenkins approached Lowe
and asked if there was any anhydrous ammonia or other dangerous
substances on the property. In response to the Stateâs arguments on
31
discretionary review regarding the promise of leniency issue, Lowe
contends this reinitiation of questioning violated his Fifth Amendment
right to counsel. 12 The State does not dispute that Lowe was subjected
to a custodial interrogation or that Lowe had affirmatively invoked his
right to counsel, when Jenkins began to question Lowe regarding the
presence of anhydrous ammonia on the property. The State contends
Jenkinsâs questions fall under the public safety exception to the Miranda
warnings.
After receiving the Miranda warnings, a suspect may waive his
rights and respond to interrogation, or a suspect can request counsel.
Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed.
2d 378, 385 (1981). âUnder the Federal Constitution, the authorities
must follow different procedural safeguards to re-interrogate a suspect
depending on whether the suspect has invoked his or her right to remain
silent or the right to the presence of counsel.â Palmer, 791 N.W.2d at
848. In Edwards, the Court established a clear, bright-line rule: If the
suspect requests counsel, all interrogation must cease until the detainee
is provided with an attorney or âthe accused himself initiates further
communication, exchanges, or conversations with the police.â Edwards,
451 U.S. at 484â85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386; see also
12The State claims the issue of the Miranda violation is not properly before the
court because Lowe did not file a cross-application for discretionary review of the
district courtâs determination that the public safety exception was applicable in this
case. The district court ultimately suppressed the statements based on the promissory
leniency argument. We have stated that âwe will uphold a ruling of the court on the
admissibility of evidence on any ground appearing in the record, whether urged below
or not.â State v. McCowen, 297 N.W.2d 226, 227 (Iowa 1980); see also State v. Parker,
747 N.W.2d 196, 208 (Iowa 2008). In this case, the issue was actually argued in front
of the district court, which heard testimony from the officers at the scene regarding the
potential dangers facing the officers and the reasons for reinitiating interrogation. The
record contains more than sufficient evidence for us to rule on the public-safety-
exception issue, and it is properly before us.
32
Palmer, 791 N.W.2d at 848 (â[T]he Court in Edwards adopted a per se
ban on any further questioning of a suspect without the presence of
counsel, for an indefinite duration, after the suspect invokes the right to
counsel.â). The Court reasoned that invoking the right to counsel is a
âsignificant eventâ and once an accused has requested an attorney, he
has an â âundisputed rightâ under Miranda to remain silent and to be free
of interrogation.â Edwards, 451 U.S. at 485, 101 S. Ct. at 1885, 68 L.
Ed. 2d at 386â87 (citation omitted).
The State does not dispute that Lowe requested an attorney.
Instead, the State seeks to extend the âpublic safety exceptionâ to the
Miranda requirements to situations like the one here, where the accused
has requested an attorney and the police subsequently reinitiate
questioning. We have not previously decided whether the public safety
exception applies after the Miranda protections have been invoked.
The public safety exception to the Miranda warnings was first
announced in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L.
Ed. 2d 550 (1984), and has since been adopted in Iowa. See State v.
Deases, 518 N.W.2d 784, 791 (Iowa 1994). Under the public safety
exception, when âpolice officers ask questions reasonably prompted by a
concern for the public safety,â without first giving suspects Miranda
warnings, the responses those questions elicit do not violate Miranda.
Quarles, 467 U.S. at 656, 104 S. Ct. at 2631â32, 81 L. Ed. 2d at 557.
The justification given for the rule is straightforward: â[T]he need for
answers to questions in a situation posing a threat to the public safety
outweighs the need for the prophylactic rule protecting the Fifth
Amendmentâs privilege against self-incrimination.â Id. at 657, 104 S. Ct.
at 2632, 81 L. Ed. 2d at 558. In ordinary interrogations, the Court
reasoned, Miranda warnings are procedural safeguards which make a
33
suspect less likely to divulge information, and their primary âsocial costâ
is fewer convictions. Id. at 656â57, 104 S. Ct. at 2632, 81 L. Ed. 2d at
557. In the public safety situation, however, âthe cost would have been
something more than merely the failure to obtain evidence.â Id. at 657,
104 S. Ct. at 2632, 81 L. Ed. 2d at 558. The cost in these situations
would be increasing the risk of harm to the public. Id.
We have noted that the public safety exception is closely drawn
and narrow in scope. In re J.D.F., 553 N.W.2d 585, 588 (Iowa 1996); see
also Quarles, 467 U.S. at 658, 104 S. Ct. at 2632, 81 L. Ed. 2d at 558.
For the exception to apply, there must be a threat to public safety and an
âimmediate necessityâ for the information the officer seeks to obtain by
questioning a suspect in violation of Miranda. Quarles, 467 U.S. at 657,
104 S. Ct. at 2632, 81 L. Ed. 2d at 557. The exception will only apply in
situations where there is âsufficient exigency to justify the questioning.â
In re J.D.F., 553 N.W.2d at 588. A missing gun in a field creates
âsufficient exigencyâ to justify pre-Miranda questioning. Id. at 587â88.
The exception also applies to the discovery of an active
methamphetamine lab. State v. Simmons, 714 N.W.2d 264, 275 (Iowa
2006).
In Simmons, officers could smell anhydrous ammonia from outside
the door of an apartment. Id. at 269. After requesting permission to
enter the apartment and receiving no response, officers forced the door
open. Id. Once the door was open, the smell of anhydrous ammonia was
strong enough to make one officerâs eyes water. Id. Without reciting
Miranda warnings, the officers asked the defendant whether there was an
active meth lab in the apartment, and the defendant said there was. Id.
at 269â70. The officers then evacuated the residents of the apartment
34
across the hall, immediately called dispatch, and did not reenter the area
without protective gear. Id. at 270. We held
[the officerâs] inquiries as to the presence and status of a
methamphetamine lab were for the purpose of obtaining
information that would help him safely address the
potentially volatile and dangerous situation confronting the
officers at the scene, and not solely to obtain incriminating
information from [the defendant].
Id. at 275. Particularly, we noted the strong odor of anhydrous ammonia
in the apartment. Id. The odor itself posed a safety risk to the officers
and the neighbors, and that risk justified the officersâ failure to recite the
Miranda warnings prior to questioning the defendant about the presence
and nature of a meth lab. Id. These circumstances demonstrated
sufficient exigency for the public safety exception to apply.
In this case, the officers had been in Audsleyâs mobile home for
nearly five hours before officers found inactive components of a meth lab
and Jenkins reinitiated questioning of Lowe. During that time, the
officers did not report any odor of anhydrous ammonia or ether, nor did
they report any physical effects such as watering eyes. Jenkins only
reinitiated questioning after components of a meth lab were discovered,
but he did not order the other officers out of the mobile home or evacuate
the surrounding residences. Jenkins testified that there was material in
one of the bedrooms that smelled of anhydrous ammonia, but this
material had not been located at the time Jenkins reinitiated
questioning. Jenkins also testified Lowe told him that he was not
actively manufacturing methamphetamine in the mobile home at the
time of the search. Audsley confirmed that Lowe had manufactured
methamphetamine in the past, but she had told him he could not do it in
the house. The only basis for the reinitiation of interrogation was the
discovery of the inactive components of a meth lab in the bathroom.
35
The discovery of inactive components of a meth lab does not
provide sufficient exigency to justify a public safety exception to the
requirements of Miranda and its progeny. Unlike the officers in
Simmons, where the exception was applicable, Jenkins was not
confronted with an active methamphetamine lab. None of the officers in
Audsleyâs mobile home reported any odors of anhydrous ammonia or
ether. There was no evidence that the active âcookingâ of meth was
taking place. Additionally, Jenkins did not feel the threat was severe
enough to evacuate Audsley and his fellow officers, or to warn nearby
residents and remove them from the potentially dangerous area. Under
these facts, we cannot conclude there was sufficient exigency for the
public safety exception to apply.
Once a suspect requests an attorney, all interrogation must cease.
Edwards, 451 U.S. at 484â85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386â
87; see also Palmer, 791 N.W.2d at 847â48. Jenkins reinitiated
questioning prior to Lowe speaking with an attorney. Because the State
has not shown sufficient exigency to invoke the public safety exception,
the statements made by Lowe after he requested counsel were taken in
violation of Miranda and Edwards. Because there was insufficient
exigency to invoke the public safety exception in this case, we need not
determine whether the public safety exception could ever apply in a
situation where the suspect had already requested an attorney. Under
the facts and circumstances of this case, and based upon our prior
precedent, we hold that there is insufficient exigency to justify the
officerâs departure from the Miranda requirements. Since the statements
are suppressed on this basis, we need not address the issue of
promissory leniency.
36
V. Disposition.
The police did not violate Loweâs federal or state constitutional
rights when they searched the fruit can on the coffee table in Audsleyâs
living room. Audsleyâs consent was not the result of prior illegal police
action and therefore the evidence is not âfruit of the poisonous tree,â nor
was her consent involuntary under the totality of the circumstances that
existed in this case. Additionally, despite being physically present, Lowe
never objected to the entry of the police or the search of the fruit can. As
such, the trial court was correct in denying the motion to suppress the
physical evidence obtained pursuant to the consent and the search
warrant. Also, when the police reinitiated questioning of Lowe after he
requested an attorney, they violated his constitutional rights under
Miranda. Accordingly, those statements were properly suppressed. On
discretionary review from the district courtâs ruling granting the motion
to suppress the statements, the ruling on the motion to suppress is
affirmed. On cross-application for discretionary review, the district
courtâs ruling denying the motion to suppress the physical evidence
obtained based on the alleged violation of the United States and Iowa
Constitutions is affirmed.
DECISION OF THE DISTRICT COURT AFFIRMED ON APPEAL;
DECISION OF THE DISTRICT COURT AFFIRMED ON CROSS-APPEAL
AND CASE REMANDED.
Cady, C.J., concurs; Appel, Wiggins, and Hecht, JJ., concur in part
and dissent in part; and Waterman and Mansfield, JJ., concur specially.
37
#10â1454, State v. Lowe
WATERMAN, Justice (concurring specially).
I concur in the result and in all aspects of the well-reasoned
majority opinion, except for its blessing of the language in State v. Pals,
805 N.W.2d 767, 783 (Iowa 2011), characterizing traffic stops as an
âinherently coerciveâ setting for determining whether a citizenâs consent
to the search of his vehicle is voluntary. Pals was wrongly decided for
the reasons set forth in my dissenting opinion in that case. See Pals,
805 N.W.2d at 788 (Waterman, J., dissenting) (noting the â âtemporary
and relatively nonthreatening detention involved in a traffic stopâ â
(quoting Maryland v. Shatzer, 599 U.S. ___, ___, 130 S. Ct. 1213, 1224,
175 L. Ed. 2d 1045, 1058 (2010))). Todayâs majority correctly applies our
precedent and Federal Fourth Amendment precedent to uphold Audsleyâs
consent to search as voluntary.
I would like to respond to my dissenting colleagues. The dissent
thinks it âindisputableâ that Howard, Reinier, and Randolph,
âcollectively,â require invalidation of the consent search under article I,
section 8 of the Iowa Constitution. This is surprising because none of
those cases was decided under a separate analysis of Iowa constitutional
law. 13
Moreover, each of those cases is distinguishable. In State v.
Howard, the officer told the defendant that âhe was only interested in
retrieving the [stolen] property and that if Howard turned it over to the
authorities, he would not be prosecuted.â 509 N.W.2d 764, 766 (Iowa
1993). That is quite different from the circumstances surrounding
13Reinier invalidated the search under both the Fourth Amendment and the Iowa
Constitution, but its analysis was based on Fourth Amendment precedent and there
was no separate consideration of the Iowa Constitution. State v. Reinier, 628 N.W.2d
460, 464, 469 (Iowa 2001).
38
Audsleyâs consent to search. No promise of leniency was made to her.
State v. Reinier is closer to being on point, as the majority opinion
acknowledges, but is still readily distinguishable because the police both
âasserted authority to searchâ and engaged in âdeception with no
reasonable basis.â 628 N.W.2d 460, 468â69 (Iowa 2001). Here, neither
of those factors is present. The police did not state or imply they could
search without consent; rather, they asked Audsley whether they could
search, and she initially told them no, but later handed them the
Del Monte fruit can with the marijuana and pipe. There is also no
indication any misrepresentation was made to Audsley. To the contrary,
no one disputed the officer told Audsley the truth when he said her
friend (who Audsley admitted smoked marijuana with her earlier that
day) was in a medical emergency due to a drug overdose. Finally,
Georgia v. Randolph draws a âlineâ that the consent of the only cotenant
who is present is valid â[s]o long as there is no evidence that the police
have removed the potentially objecting tenant from the entrance for the
sake of avoiding a possible objection.â 547 U.S. 103, 121, 126 S. Ct.
1515, 1527, 164 L. Ed. 2d 208, 226â27 (2006). As the majority notes
and the dissent does not dispute, there is nothing in the record to
suggest the police removed Lowe to forestall his objection to a search.
In short, I do not think Howard, Reinier, and Randolph can be
fairly read, even âcollectively,â to require invalidation of the initial search
in this case. As in Pals, the problem here is not that the existing Fourth
Amendment search and seizure precedents are unclear. The problem is
that members of this court believe those precedents lead to an unjust
result and therefore want to chart a different path under the Iowa
Constitution.
39
The dissent then moves to its real point, which is that we should
adopt a rule under the Iowa Constitution requiring police to advise
occupants of their right to refuse a search. The dissent claims this
would provide a âmuch clearer rule.â I have my doubts. The dissentâs
proposed rule works only in one direction: If the advice was not given,
then the search is invalid. If it was given, the search could still be
invalid if the consent is shown to be involuntary for some other reason.
See Reinier, 628 N.W.2d at 469 (consent found to be involuntary based
on police conduct and statements even though defendant read and
signed written consent form). I am not sure the dissentâs one-way rule
provides much clarity. To the contrary, the dissentâs seductive allure of
promised new clarity in determining the validity of residential consent
searches must be weighed against the significant uncertainty inevitably
resulting from the break with Iowa and federal search and seizure
precedent and the lack of clarity over how far the new advance warning
requirement would be extended in future cases.
Yet another problem with the dissentâs approach is its disconnect
from the present case. In the dissentâs view, a consent to search is
automatically âinvoluntaryâ unless the person was told he or she had a
right to refuse the search. But in this case, Audsley unquestionably
knew she had that right. She indicated to the police she would not
consent to a search of her premises; those requests were consistently
honored. She did at one point retrieve the fruit can, hand it to the police,
and agree that they could open it; but there is no doubt on this record
she knew she had the right not to do so. She then refused to consent to
a broader search of the premises. If the search here is to be deemed
âinvoluntary,â the reason cannot be Audsleyâs ignorance of her legal
40
rights. Thus, the dissent would construct a rule to address an issue that
is not even presented by this case. 14
In any event, I would be very hesitant to throw aside decades of
precedent and create another discrepancy between Fourth Amendment
law and how the identically worded article I, section 8 of the Iowa
Constitution is interpreted. See Reinier, 628 N.W.2d at 464 (stating that
the âsame fundamental right of privacy is foundâ in the Fourth
Amendment and article I, section 8 of the Iowa Constitution). The
dissent says that consent forms are practical to use and would not
significantly affect law enforcement. It would be nice if law enforcement
could weigh in on this subject. 15 They could if the consent requirement
were adopted legislatively, rather than as a new-found interpretation of
the Iowa Constitution. Because we are talking about changing the law to
make it more âpractical,â this strikes me as an argument that should be
directed in the first instance to the legislature. The dissent cites Welch v.
Iowa Department of Transportation, but it is important to recognize that
Welch involved adherence to a long-standing bright-line rule of statutory
interpretation, as opposed to overturning long-standing constitutional
precedent. 801 N.W.2d 590, 592 (Iowa 2011). And merely because prior
warnings on written consent forms offer benefits and are currently in use
by some law enforcement agencies does not mean we should reinterpret
our state constitution to require them hereafter.
14The dissent accuses me of trying to send a âmessageâ that repeated police
pressure on a person who initially refuses a search but ultimately succumbs to the
pressure renders the search valid. Not at all. All I am saying is (a) the pressure in this
case was not such as to render Audsleyâs consent involuntary, and (b) it makes no
sense to adopt a new rule requiring police to tell persons they have a right to refuse a
search in a case in which the individualâs knowledge of that right was not at issue.
not even the parties have weighed in on the subject because no one
15Here,
argued hereâor belowâfor the mandatory warning approach proposed by the dissent.
41
The dissent presents no persuasive reason to overturn our own
precedent under both the Fourth Amendment and article I, section 8 of
the Iowa Constitution holding prior warnings are not required for consent
searches. See State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004) (âAn
individualâs response [to police requests to search] is considered
consensual, even though the person has not been advised that he is free
to refuse to respond.â (citing United States v. Drayton, 536 U.S. 194,
203, 122 S. Ct. 2105, 2112, 153 L. Ed. 2d 242, 253 (2002))). The only
caselaw cited by the dissent in support of its proposed sea change in
search and seizure law are the decisions of just four other state supreme
courts. Those decisions are outliers.
The overwhelming majority of state appellate courts analyzing
consent search issues on independent state constitutional grounds
follows the federal approach and rejects a requirement that police advise
suspects they can decline requests for permission to search. See, e.g.,
State v. Flores, 185 P.3d 1067, 1071 (N.M. Ct. App. 2008) (âEvery other
state court that has been asked to adopt the Ferrier rule as a matter of
state constitutional law has rejected it.â) (collecting knock-and-talk
cases); Commonwealth v. Cleckley, 738 A.2d 427, 432 (Pa. 1999) (âThose
states that have addressed this issue, however, have, for the most part,
rejected the notion that knowledge of oneâs right to refuse consent to a
warrantless search is required under the applicable state constitution,
opting instead to follow the federal voluntariness standard which focuses
on the totality of the circumstances as opposed to any one factor.â)
(collecting other cases).
The dissent fails to note that the leading case of its minority of
four, State v. Ferrier, was expressly based on a unique state
constitutional provision stating, âNo person shall be disturbed in his
42
private affairs, or his home invaded, without authority of law.â 960 P.2d
927, 930 (Wash. 1998) (quoting Wash. Const. art. I, § 7). As the Ferrier
court confirmed, âThis provision differs from the Fourth Amendment in
that, â[u]nlike the Fourth Amendment, Const. art. I, § 7 âclearly
recognizes an individualâs right to privacy with no express limitations.â â â
Id. (quoting State v. Young, 867 P.2d 593, 596 (Wash. 1994)). By
contrast, the Iowa search and seizure provision and the Fourth
Amendment are worded identically.
Nevertheless, a sharply divided Arkansas Supreme Court relied on
Ferrier in adopting a warning requirement under its state constitution in
State v. Brown. 156 S.W.3d 722, 731 (Ark. 2004). The dissenting
opinion begins, âToday, a 4â3 divided court issues an opinion that makes
a radical change in Arkansas search and seizure law. The decision is
clearly contrary to prior law and the change is totally unwarranted and
unnecessary.â Id. at 732 (Glaze, J., dissenting). Justice Glazeâs
observation would be equally true for Iowa if todayâs dissent had one
more vote in this case.
My colleaguesâ dissent cites âvalues underlying article I, section 8,â
but those values are the same values that underlie the Fourth
Amendment and all other state constitutional search and seizure
provisions. None of those values are new; none of the dissentâs
arguments are new. Do todayâs dissenters understand those values
better than the Justices of the United States Supreme Court, the justices
of the great majority of state supreme courts, and our own predecessors
on this court who have declined to hold that a consent to search is
automatically invalid unless the individual was expressly told he or she
had a right to refuse consent? Where others have looked at the same
43
âvaluesâ for so long and generally come to a different conclusion, I would
be hesitant to substitute my assessment of âvaluesâ so quickly.
Notwithstanding the dissentâs references to âspecial protection of
the home,â the dissent also implies that its requirement of a prior
warning of a right to refuse should apply to vehicle searches. The
dissent criticizes the reasoning in the Pals majority opinion that one of
the dissenters wrote just three months ago. And logically speaking, there
is no reason why the dissentâs requirement of a prior warning should not
apply to searches of the person. Or, for that matter, to noncustodial
interrogations that yield confessions which in the dissentâs new world
would be inadmissible without prior warnings. I would not go there.
Mansfield, J., joins this special concurrence.
44
#10â1454, State v. Lowe
APPEL, Justice (concurring in part and dissenting in part).
I readily concur in the majorityâs discussion of exigent
circumstances. I dissent, however, on the issue of consent to search.
Certainly we all recognize that the home is entitled to special
protection under the Fourth Amendment. This special protection of the
home has been repeatedly emphasized by the United States Supreme
Court and by this court. Protection of the home is wired into the Fourth
Amendment; article I, section 8 of the Iowa Constitution; and in the DNA
of judges who believe the constitutional provisions regulating search and
seizure have meaning.
For instance, in Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct.
524, 532, 29 L. Ed. 746, 751 (1886), abrogated on other grounds by
Warden v. Hayden, 387 U.S. 294, 302, 87 S. Ct. 1642, 1647â48, 18
L. Ed. 2d 782, 789 (1967), the Court emphasized that constitutional
search and seizure principles apply
to all invasions on the part of the government and its
employees of the sanctity of a manâs home and the privacies
of life. It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the essence of
the offense; but it is the invasion of his indefeasible right of
personal security, personal liberty, and private property . . . .
And then in Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct.
341, 344, 58 L. Ed. 652, 656 (1914), overruled in part on other grounds
by Mapp v. Ohio, 367 U.S. 643, 654â55, 81 S. Ct. 1684, 1691, 6
L. Ed. 2d 1081, 1089â90 (1961), the court said:
If letters and private documents [could] . . . be [unlawfully]
seized [from a home without a warrant] and used in evidence
against a citizen accused of an offense, the protection of the
[Fourth] Amendment, declaring his right to be secure against
such searches and seizures, is of no value, and . . . might as
well be stricken from the Constitution.
45
Similarly, in Johnson v. United States, 333 U.S. 10, 13â14, 68
S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948), the Supreme Court, in
Justice Jacksonâs famous words, declared:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists
in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime. Any assumption that evidence sufficient to support a
magistrateâs disinterested determination to issue a search
warrant will justify the officers in making a search without a
warrant would reduce the Amendment to a nullity and leave
the peopleâs homes secure only in the discretion of police
officers.
While the current United States Supreme Court has dramatically
scaled back Fourth Amendment protections, it has repeatedly
emphasized the sanctity of the home as being at the core of Fourth
Amendment protections. For example, in United States v. Karo, 468 U.S.
705, 717, 104 S. Ct. 3296, 3304, 82 L. Ed. 2d 530, 542 (1984), the Court
held that a search warrant is required when an electronic monitor is
placed in a drum outside of the home, but is subsequently carried into
the home. In Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371,
1388, 63 L. Ed. 2d 639, 661 (1980), the Court held that an arrest
warrant is required to enter the home of an occupant. In Kyllo v. United
States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046, 150 L. Ed. 2d 94, 106
(2001), the Court held that a warrant is required to use a device not in
general public use that measures heat within the home even when there
is no physical intrusion.
The sanctity of the home was an underpinning of this courtâs
recent opinion in State v. Ochoa, 792 N.W.2d 260 (Iowa 2010). In Ochoa,
we stated, âThe home plays a central role in a personâs life, providing
46
sanctuary, comfort, seclusion, security, and identity.â Ochoa, 792
N.W.2d at 289. We observed the Iowa framers âclearly endorsedâ the
notion of the sanctity of the home, and we explained our caselaw has
historically âreflected considerable solicitude to the sanctity of the home.â
Id. at 275, 285. We further emphasized that â[i]nvasions of the home by
government officials cannot be regarded as constitutionally insignificant.â
Id. at 289.
The need to guard against invasions of the home has been long
recognized in the knock-and-talk context. Felix Frankfurter once wrote
to Chief Justice Warren in connection with search and seizure law that
â[t]o the extent that I am charged, not by you, with being âa nutâ on the
subject of the âknock at the door,â I am ready to plead guilty.â Bernard
Schwartz, Super Chief: Earl Warren and His Supreme CourtâA Judicial
Biography 266 (1983). Not surprisingly, there is considerable caselaw
and academic commentary cautioning about use of the knock-and-talk
procedure to evade the warrant requirement ordinarily required before
police may search a home.
For example, in Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App.
2003), the court noted, âWhile not per se unlawful, the knock and talk
procedure âpushes the envelopeâ and can easily be misused.â Similarly,
in United States v. Johnson, 170 F.3d 708, 721 (7th Cir. 1999) (Evans, J.,
concurring), it was observed that âthe seeds of this bad search were sown
when the police decided to use the âknock and talkâ technique.â Justice
Stevens, in his concurring opinion in Georgia v. Randolph, 547 U.S. 103,
124, 126 S. Ct. 1515, 1528â29, 164 L. Ed. 2d 208, 228 (2006) (Stevens,
J., concurring), suggested that there is a need for a tightened
voluntariness standard in connection with knock and talks.
47
A number of courts have suggested police must have at least
reasonable suspicion before a knock-and-talk procedure may be
implemented. See, e.g., United States v. Jones, 239 F.3d 716, 720â21
(5th Cir. 2001); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir.
1991). Some commentators have suggested the requirement of
reasonable suspicion does not go far enough. See, e.g., Craig M. Bradley,
âKnock and Talkâ and the Fourth Amendment, 84 Ind. L.J. 1099, 1117
(2009) [hereinafter Bradley]. Although the issue of reasonable suspicion
is not an issue in this case, these authorities cited above demonstrate
the sensitivity of courts in considering the invasion of privacy interests
inherent in the knock-and-talk procedure.
Academics have cautioned that knock-and-talk methods may
render the search warrant requirement nugatory. See, e.g., Bradley, 84
Ind. L.J. at 1099. These commentators often favor a requirement of a
knowing and intentional waiver in order to promote the sanctity of the
home and defend the ordinary requirements of probable cause and a
judicial warrant before a home may be searched. Id. at 1127.
With this background, we now turn to the issue of consent in the
present case. In State v. Pals, 805 N.W.2d 767 (Iowa 2011), this court
determined that an automobile search was invalid under article I, section
8 of the Iowa Constitution. We noted weaknesses in the federal court
application of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041,
36 L. Ed. 2d 854 (1973). Pals, 805 N.W.2d at 779â82. While we reserved
the issue of whether to adopt a more demanding âknowing and voluntary
waiver testâ under Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82
L. Ed. 1461 (1938), for another day, we held that any application of a
totality-of-the-circumstances test to determine whether consent was
voluntary must be done with rigor to promote the constitutional values
48
underlying article I, section 8. Pals, 805 N.W.2d at 782. Although we
are confronted with a different factual scenario in this case, applying the
more rigorous totality-of-the-circumstances test described in Pals leads
to the conclusion that the consent in this case should be considered
involuntary.
First, I begin with recognition that this case involves a search of
the home. One of the abuses that gave rise to the Fourth Amendment
was the abuse caused by the Kingâs agents through dragnet searches of
homes without probable cause which were purportedly authorized by
general warrants and writs of assistance. In light of the history, and the
wording of the Fourth Amendment itself, protection of the home from
generalized searches not supported by probable cause has long been
considered at the core of search and seizure law. See Johnson, 333 U.S.
at 14, 68 S. Ct. at 369, 92 L. Ed. at 440; Boyd, 116 U.S. at 630, 6 S. Ct.
at 532, 29 L. Ed. at 751; see also Kyllo, 533 U.S. at 40, 121 S. Ct. at
2046, 150 L. Ed. 2d at 106; Karo, 468 U.S. at 716â17, 104 S. Ct. at
3304, 82 L. Ed. 2d at 542; Payton, 445 U.S. at 603, 100 S. Ct. at 1388,
63 L. Ed. 2d at 661. Our cases recognize the sanctity of the home in the
Iowa constitutional tradition as well. See, e.g., Ochoa, 792 N.W.2d at
274â75; State v. Sheridan, 121 Iowa 164, 167, 96 N.W. 730, 731 (1903).
Most recently, in Ochoa, we built on earlier state precedent, which noted
that âthe right of officers to thrust themselves into the home is a matter
of âgrave concern.â â Id. (quoting State v. Brant, 260 Iowa 758, 763, 150
N.W.2d 621, 625 (1967)).
In short, there is ample support for the common sense notion that
we should be especially solicitous of the privacy interest in a personâs
home in considering search and seizure questions under article I, section
8 of the Iowa Constitution. The centrality of the home in search and
49
seizure law dictates that we engage in a searching analysis before we
conclude that the constitutional right to privacy in the home has been
waived in the knock-and-talk context. â[T]he closer officers come to
intrusion into a dwelling, the greater the constitutional protection.â State
v. Ferrier, 960 P.2d 927, 931 (Wash. 1998) (citation and internal
quotation marks omitted); see also State v. Brown, 156 S.W.3d 722, 731
(Ark. 2004) (fundamental interest in the home requires that any violation
requires strict scrutiny and compelling state interest). Therefore, in the
knock-and-talk context we should take seriously the notion that
âphysical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.â United States v. U.S. Dist. Ct., 407
U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972).
Second, I think it obvious that knock and talks have an element of
inherent coercion. 16 I note the admonition of Caleb Foote many years
ago that âwhat on their face are merely words of request take on color
from the officerâs uniform, badge, gun, and demeanor.â Caleb Foote, The
Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J.
Crim. L. & Criminology 402, 403 (1960). It has more recently been
observed that â[i]t is inherently improbable that criminal suspects
voluntarily would consent to the discovery of the very evidence necessary
to seal their legal demise.â Christo Lassiter, Eliminating Consent from the
Lexicon of Traffic Stop Interrogations, 27 Cap. U. L. Rev. 79, 128 (1998).
A police request for consent âhowever gently phrased, is likely to be taken
by even the toughest citizen as a command. Refusal of requested
âpermissionâ is thought by most of us to risk unpleasant, though
16There is authority for the proposition that the level of inherent coercion in the
context of a knock and talk is less than in a traffic stop. See State v. Domicz, 907 A.2d
395, 407 (N.J. 2006). This may be true, but while the element of coercion may be
somewhat less, the interest in privacy is at its zenith in the home.
50
unknown, consequences.â H. Richard Uviller, Tempered Zeal: A Columbia
Law Professorâs Year on the Streets with the New York City Police 81
(1988). 17 As a result, we have recently said that any application of
Schneckloth must be made âwith teethâ and cannot involve a cursory
review of evidence leading to an inevitable conclusion. See Pals, 805
N.W.2d at 782; see also Adrian J. Barrio, Note, Rethinking Schneckloth v.
Bustamonte: Incorporating Obedience Theory into the Supreme Courtâs
Conception of Voluntary Consent, 1997 U. Ill. L. Rev. 215, 233 (1997).
Third, there is a question regarding a promise of leniency or similar
representations. In this case, law enforcement officers represented that
they were not interested in the crimes of the homeowner, but only in the
health of third parties. This representation is indistinguishable from the
representation made in State v. Howard, 509 N.W.2d 764 (Iowa 1993). In
Howard, we held that an officerâs statement that âno one was in trouble
and that the officer intended only to recover the stolen propertyâ was a
sufficient promise of leniency to invalidate consent to search. Howard,
509 N.W.2d at 766.
Further, in State v. Reinier, 628 N.W.2d 460, 469 (Iowa 2001), a
resident signed a written consent form stating that the resident
consented to the search, that the consent was âfree from duress and
coercion,â that the party could ask the officers âto stop searching at any
time,â and that the officers could not make the search of the property
except âby legal warrant.â Appendix at 56, State v. Reinier, 628 N.W.2d
460 (Iowa 2001) (No. 99â1963). Notwithstanding the execution of the
consent, the officersâ statements that they were not looking for small
17Theseauthorities are cited in Tracey Maclin, The Good and Bad News About
Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27, 28 n.6, 52 n.162
(2008).
51
quantities of drugs but âmeth labsâ and âmajor dealersâ were found to
bear on the voluntariness of the consent because the statements
reflected limitations on the nature of the crime under investigation. We
stated in Reinier that such statements âsubtly create a false belief that no
adverse consequencesâ will result from the search even when the police
obtain a written consent to search from the defendant. Reinier, 628
N.W.2d at 469. Like Howard, our holding and analysis in Reinier
strongly indicates the consent in this case should not be considered
voluntary.
A ruling to the contrary in this case would amount to a departure
from our established approach in Howard and Reinier. Citing Reinier
with approval, Professor LaFave emphasizes that even a truthful
representation that tends to minimize the consequences undermines
voluntariness. 4 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 8.2(n), at 140 (4th ed. 2004) [hereinafter LaFave].
Fourth, there was an assertion of authority when the officers
directed persons to sit on couches and leave the premises. It may not
have technically amounted to a seizure, but nonetheless it appears that
police were asserting control of the situation. Police commands in the
confines of a home suggest consent may be more a product of
acquiescence than a truly voluntary act. This conduct is a factor that
tips against voluntariness. See Randolph, 547 U.S. at 121, 126 S. Ct. at
1527, 164 L. Ed. 2d at 226â27 (stating where police separate co-
occupant for purpose of avoiding possible objections of one of the
occupants to the search, the search is invalid). This is precisely what
occurred in this case.
Fifth, law enforcement did not advise the resident that she had a
right to refuse consent. We discussed this element extensively in Pals,
52
observing a disclosure of the right to decline the search is a very
important feature of determining whether there has been an appropriate
balance between police authority and the rights of citizens. See Pals,
805 N.W.2d at 783. As noted by Justice Stevens in the context of the
search of a home, cotenants should be advised that âeach of the partners
has a constitutional right that he or she may independently assert or
waive.â Randolph, 547 U.S. at 125, 126 S. Ct. at 1529, 164 L. Ed. 2d at
229 (Stevens, J., concurring). While under a Schneckloth-type totality-of-
the-circumstances test the failure to inform a suspect of the right to
refuse consent is not dispositive, I would accord it great weight in the
knock-and-talk context. Where the privacy interests are the highest and
most intense, a truly voluntary consent to search is less likely than
where the invasion of privacy is minimal. Stated in other words, ignorant
consent does not seem likely to be truly voluntary when uniformed police
arrive at the home and seek to search highly private areas. 18
In this regard, it is important to further note that the repetitive
refusal to consent is an aggravating factor. 19 4 LaFave § 8.2(f), at 98
(stating it would seem that a suspectâs earlier refusal to give consent is a
factor which is properly taken into account as part of the totality of
circumstances in judging the later consent). At least one commentator
has suggested that once a person declines consent to a search, a rule
similar to that in Edwards v. Arizona, 451 U.S. 477, 484â85, 101 S. Ct.
1880, 1885, 68 L. Ed. 2d 378, 386 (1981), should apply, namely, that
18For exploration of the concept of ignorant consent, see Morgan Cloud,
Ignorance and Democracy, 39 Tex. Tech. L. Rev. 1143 (2007).
19Oddly, the special concurrence turns this factor on its head, suggesting that
because Audsley at first refused, her later consent is voluntary. The message of the
special concurrence is that repeated police pressure on a resident after he or she
refuses consent, which ultimately overcomes his or her resistance, produces a valid
search.
53
police must scrupulously honor the request in order to avoid implicit
coercion incompatible with Fourth Amendment principles. Tracey
Maclin, The Good and Bad News About Consent Searches in the Supreme
Court, 39 McGeorge L. Rev. 27, 80â81 (2008).
Under the circumstances, namely, a search of a home, the lack of
a clear statement of the right to refuse consent, statements limiting the
purpose of the search, and the repeated refusal to consent to search, I
would hold the search is involuntary under article I, section 8 of the Iowa
Constitution. As noted in Reinier:
Police can request consent to enter and search a home in the
course of investigating a complaint without intimidation,
implied authority, or minimizing the consequences. We
think the fair accommodation between the interest in
effective law enforcement and our fundamental belief in fair
law enforcement procedures requires this conclusion.
Reinier, 628 N.W.2d at 469.
The cases try to put a degree of structure on the determination of
voluntariness, and I think that Howard, Reinier, and Randolph,
collectively require a finding of involuntariness. If we do not utilize this
caselaw to structure the analysis, we are left with a wide open, totality-
of-the-circumstances test in which the seven members of this court, in
essence, sit as a jury to weigh whether the consent was really a voluntary
one or whether it was directly or indirectly coerced. Our caselaw, of
course, has long recognized that atmospherics play an important role in
that determination. We seek a realistic, and not a formal, assessment of
the totality of circumstances. In my view, the majority does not give
proper recognition to the notion that the consent exception to the
warrant requirement is a â âjealously and carefully drawnâ â exception.
Randolph, 547 U.S. at 109, 126 S. Ct. at 1520, 164 L. Ed. 2d at 219
54
(quoting Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 1257,
2 L. Ed. 2d 1514, 1519 (1958)).
Yet, it is not at all surprising, and indeed, it is completely to be
expected, that members of this court, like members of a jury, would have
different views in many cases. Specifically, the majority believes the
record shows that the resident had knowledge of her right to decline the
request to search and that the environment was not sufficiently coercive
to invalidate the search. For the reasons already stated, I see the
situation much differently.
In Pals, we declined to reach the question of whether we should
abandon a Schneckloth-type voluntariness test in favor of the knowing
and voluntary waiver test in Zerbst. Pals, 805 N.W.2d at 782. It was
unnecessary in Pals to reach the larger issue as the court determined a
narrower ground was sufficient to decide the issues at hand. Id.
While deciding an issue on narrow grounds is generally sound, this
case demonstrates that a Schneckloth-type voluntariness test, even one
âwith teeth,â does not yield completely satisfactory results. As a leading
authority has noted in the context of Schneckloth, â[I]t can seldom be
said with confidence that a particular combination of factors will
inevitably ensure a finding of either consent or no consentâ because of
the difficulty in applying the multifactored voluntariness test. 4 LaFave
§ 8.2, at 53â54. The spongy nature of the Schneckloth voluntariness test
has not escaped the courts, where it has been noted that courts can be
bogged down in âneedless suppression motions, hearings, and appeals.â
Hayes v. State, 794 N.E.2d 492, 497â98 (Ind. Ct. App. 2003). 20
20According to a leading Fourth Amendment treatise, the Supreme Courtâs
treatment of consent in Schneckloth âgenerates almost universal criticism from
commentators.â See Thomas K. Clancy, The Fourth Amendment: Its History and
Interpretation § 10.4.1, at 418 (2008) (citing numerous law review commentaries).
55
There have been several judicial reactions to the inherent
instability of Schneckloth-type totality-of-the-circumstances review. One,
as noted by Professor Weinreb, has been for courts to simply âprovide a
lengthy factual description followed by a conclusion . . . without anything
to connect the two.â Lloyd L. Weinreb, Generalities of the Fourth
Amendment, 42 U. Chi. L. Rev. 47, 57 (1974). Another approach is to
give lip service to the open-ended totality-of-the-circumstances test in
Schneckloth, but instead focus on something else, such as the wording of
the request (was it a question or a demand) or upon police misconduct.
See William J. Stuntz, Privacyâs Problem and the Law of Criminal
Procedure, 93 Mich. L. Rev. 1016, 1064 (1995) (stating that the consent
issue often turns on whether police frame command as a question or a
demand); Brian A. Sutherland, Note, Whether Consent to Search Was
Given Voluntarily: A Statistical Analysis of Factors That Predict the
Suppression Rulings of the Federal District Courts, 81 N.Y.U. L. Rev. 2192,
2195 (2006) (finding that police misconduct rather than voluntariness
factors is most predictive of outcomes). Even these reformulated
shortcuts are not always consistently applied, with the end result that
there is considerable instability in the caselaw, with nuances and
hairsplitting ultimately deciding the cases. See generally Fern L. Kletter,
Annotation, Construction and Application of Rule Permitting Knock and
Talk Visits Under Fourth Amendment and State Constitutions, 15 A.L.R.
6th 515 (2006) (citing hundreds of cases with differing results).
In light of the difficulties of applying a multifactored test, a number
of states have adopted the view that in the knock-and-talk setting, police
must first advise a resident of his or her right to refuse consent before
consent may be considered voluntary. See, e.g., State v. Brown, 156
S.W.3d 722, 732 (Ark. 2004); Graves v. State, 708 So. 2d 858, 864 (Miss.
56
1997); State v. Johnson, 346 A.2d 66, 68 (N.J. 1975); State v. Ferrier, 960
P.2d 927, 932â33 (Wash. 1998). 21 These cases generally find that knock-
and-talk procedures carry with them a degree of coercion; that the home
is entitled to special Fourth Amendment protection; and that as a result,
a resident must be advised that they may lawfully refuse to give consent.
It is sometimes claimed that advising a person of the right to refuse
consent would deprive police of an effective law enforcement tool.
Indeed, Schneckloth itself states that a requirement of a warning would
âcreate serious doubt whether consent searches could continue to be
conducted.â Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049, 36
L. Ed. 2d at 864. Such an assertion is logically flawed and factually
incorrect.
First, the effective law enforcement argument proves too much. If
depriving police of a tool that produces evidence is the standard, the
search and seizure provisions of article I, section 8 of the Iowa
Constitution would never be enforced and it would be effectively
21There are now literally thousands of decisions where state supreme courts
have interpreted state constitutions to grant claims of individual rights and liberties
under circumstances where the United States Supreme Court has declined to do so.
See 1 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims,
and Defenses § 1.01[1], at 1-2 (4th ed. 2006); see generally Robert F. Williams, The Law
of American State Constitutions (2009) [hereinafter Williams]. The principle of
independent interpretation applies when state and federal constitutional provisions are
identical or nearly identical. See State v. Ochoa, 792 N.W.2d 260, 264â66 (Iowa 2010)
(generally discussing independent state law grounds, including when provisions of state
and federal constitution are identical in language); State v. Cline, 617 N.W.2d 277, 284â
85 (Iowa 2000) (stating âno principle of law requires this court to interpret the Iowa
Constitution in line with the United States Constitutionâ), abrogated on other grounds
by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001); see also State v. Christensen,
953 P.2d 583, 586 (Idaho 1998) (âLong gone are the days when state courts will blindly
apply United States Supreme Court interpretation and methodologyâ even under nearly
identically worded constitutional provisions) (citation and internal quotation marks
omitted); Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992) (stating state courts should
borrow from well-reasoned and persuasive precedent when âdeemed helpful, but should
never feel compelled to parrot the federal judiciaryâ); Williams at 135 (stating the notion
that United States Supreme Court precedents are presumptively correct under state law
is âsimply wrongâ).
57
repealed. As noted by the United States Supreme Court in the context of
federal search and seizure law, â[T]he mere fact that law enforcement
may be made more efficient can never by itself justify disregard of the
Fourth Amendment.â Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct.
2408, 2414, 57 L. Ed. 2d 290, 301 (1978). The same is true under
article I, section 8 of the Iowa Constitution.
Further, the notion that effective law enforcement rests upon
citizen ignorance is not a principle that should be relied upon in a
democratic state based on the rule of law. While justice should be blind
to irrelevancies when weighing the evidence in the courtroom, citizens
facing searches of their homes are entitled to have their eyes open.
Justice Goldberg got it right fifty years ago in Escobedo v. Illinois, 378
U.S. 478, 490, 84 S. Ct. 1758, 1764, 12 L. Ed. 2d 977, 985 (1964), when
he wrote, âWe have also learned the companion lesson of history that no
system of criminal justice can, or should, survive if it comes to depend
for its continued effectiveness on the citizensâ abdication through
unawareness of their constitutional rights.â See also James A. Adams,
Search and Seizure As Seen by Supreme Court Justices: Are They Serious
or Is This Just Judicial Humor?, 12 St. Louis U. Pub. L. Rev. 413, 449
(1993) [hereinafter Adams] (stating âconstitutional rights are not to be
hidden or only grudgingly givenâ).
In any event, the available empirical evidence is that requiring
knowledge of the right to refuse consent does not dramatically reduce the
number of consent searches. Empirical data from Ohio and New Jersey
demonstrate that requiring warnings in the context of automobile
searches only marginally decreases consent to search. See Illya
Lichtenberg, Miranda in Ohio: The Effects of Robinette on the âVoluntaryâ
Waiver of Fourth Amendment Rights, 44 How. L.J. 349, 370 (2001)
58
(stating warnings reduced consent to search by motorists by less than
ten percent).
The Schneckloth Court also declared that it would be âimpracticalâ
to provide warnings in the give and take of police encounters with
citizens. Professor Adams declared such an argument âabsurd.â Adams,
12 St. Louis L. Rev. at 447. Subsequent events have vindicated his
position. California and New Jersey have agreed to settlements of
lawsuits which require written warnings for motorists when officers seek
consent to search. The FBI has used written consents that advise
citizens of their right to refuse consent since the time of Schneckloth, and
the caselaw across the country demonstrates that law enforcement
officers commonly seek written consent to search. See, e.g., United
States v. Boone, 245 F.3d 352, 362 (4th Cir. 2001); United States v.
Maez, 872 F.2d 1444, 1453â54 (10th Cir. 1989); United States v. Tatman,
615 F. Supp. 2d 664, 670 (S.D. Ohio 2008); State v. Brown, 156 S.W.3d
722, 724â25 (Ark. 2004).
Indeed, law enforcement authorities in Iowa are no different than
those in other states when it comes to written consent to search. Our
caselaw shows that written consent forms that advise a party of his right
to refuse consent are practical and in use in Iowa. See State v. Howard,
509 N.W.2d 764 (Iowa 1993); State v. Dougherty, No. 09â0812, 2011 WL
441551, at *2 (Iowa Ct. App. Feb. 9, 2011); State v. DeWitt, No. 02â1379,
2003 WL 22805617, at *2 (Iowa Ct. App. Nov. 26, 2003). And, in this
case, law enforcement officers properly recorded the encounter, thereby
eliminating the âhe said, she saidâ swearing match. 22 Whatever else
22Affordable technology now allows interrogations, citizen encounters, and
identification procedures such as lineups to be recorded. Such recordings reduce the
potential for factual disputes and promote adherence to professional law enforcement
practices.
59
might be true, obtaining written consents that contain appropriate brief
statements advising citizens of the right to refuse consent is not
impractical at all.
Indeed, our precedents are strongly pushing in the direction of
cleaning up Schneckloth. In Welch v. Iowa Department of Transportation,
801 N.W.2d 590 (Iowa 2011), this court considered whether a driver
could change his mind after he refused to consent to a chemical testing
under Iowaâs implied consent law. We held that a driver could not
change his mind once he refused. We stated:
[A] bright-line rule has the advantage of providing clear
guidance to law enforcement personnel. Clarity as to what
the law requires is generally a good thing. It is especially
beneficial when the law governs interactions between the
police and citizens.
Welch, 801 N.W.2d at 601. This powerful language cuts dead against
continued application of the totality-of-the-circumstances test of
Schneckloth.
We can continue to employ a multifactored test for determining
consent issues under article I, section 8. We have improved on this test
considerably by applying a more rigorous review than under federal
precedents. Yet, the totality-of-the-circumstances test of Schneckloth is
inherently unstable.
As a result, I am convinced that it would be better simply to
require that law enforcement advise a homeowner or resident of his or
her constitutional right to decline to consent to a search. This would
provide a much clearer rule for law enforcement and citizens alike. See
Welch, 801 N.W.2d at 601. When the homeowner or resident is advised
of his or her right to consent, a presumption would arise that the
warnings are voluntary. On the other hand, the failure of police to
60
provide such a warning would result in reversal. Such an approach is
consistent with constitutional values, provides a more workable rule for
law enforcement, and ensures that citizens are aware of their
constitutional rights before surrendering them. 23
In evaluating this case, we must ensure that our approach to
article I, section 8 does not establish a framework where constitutional
protection âfades away and disappears.â Coolidge v. New Hampshire, 403
U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971). A
knock-and-talk process whereby police seek consent to search a home
raises substantial privacy issues under article I, section 8 of the Iowa
Constitution. Under a rigorous application of a Schneckloth-type totality-
of-the-circumstances approach, the consent in this case is invalid. In
the alternative, we should abandon the totality-of-the-circumstances test
of Schneckloth altogether and adopt a requirement that a citizen must be
advised of his or her right to refuse consent before a knock-and-talk
search is valid. Such an approach is more stable than other alternatives;
provides a brighter line for law enforcement and citizens alike; is more
consistent with the values underlying article I, section 8; and would be a
significant improvement in our search and seizure law.
In any event, this case, decided by a four to three vote, has a clear
practical message. When law enforcement does not advise a homeowner
or resident of their right to refuse consent, a subsequent search might
23In this case, Lowe did not brief the issue of whether Schneckloth should be
abandoned and replaced by a mandatory warning or with a Zerbst-type test. The
majority thus declines to consider whether we should abandon Schneckloth under
either theory. Unlike the majority, I regard the issue as sufficiently intertwined to allow
the court to address the issue. See Feld v. Borkowski, 790 N.W.2d 72, 84 (Iowa 2010)
(Appel, J., concurring in part and dissenting in part). In any event, it is critically
important that the court not establish a pattern of narrowly viewing issues in order to
defeat assertions of individual rights and then of broadly viewing issues in order to
uphold the actions of the state or business actors against claims of individuals.
61
well be found invalid under the difficult to apply totality-of-the-
circumstances Schneckloth test as applied by this court under article I,
section 8 of the Iowa Constitution. Law enforcement will increase the
likelihood that a search of the home will be found âfree and voluntary,â
even under the current test, by advising home owners or residents of
their right to refuse.
Wiggins and Hecht, JJ., join this concurrence in part and dissent
in part.
Case Information
- Court
- Supreme Court of Iowa
- Decision Date
- January 20, 2012
- Status
- Precedential