               IN THE SUPREME COURT OF IOWA
                              No. 12–0139

                         Filed May 2, 2014
                   Amended Opinion August 21, 2014

STATE OF IOWA,

      Appellee,

vs.

CRAIG E. HARRISON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, C.H. Pelton,

Judge (suppression hearing) and Marlita A. Greve, Judge (trial).



      Defendant challenges validity of traffic stop upheld by court of

appeals and district court.      DECISION OF COURT OF APPEALS

AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT

JUDGMENT AND SENTENCE AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, Michael J. Walton, County Attorney, and Kelly G.

Cunningham, Assistant County Attorney, for appellee.
                                     2

WATERMAN, Justice.

      Are police officers permitted to stop a motorist because his license

plate frame covers up the county name? Two district court judges in this

case issued conflicting rulings on that question, although both denied

defendant’s motion to suppress evidence of the crack cocaine found in

his possession after the traffic stop at issue.   Police officers gave two

reasons for stopping defendant’s Jeep—their belief his license plate was

in violation of Iowa Code section 321.37(3) (2009) and their suspicion he

was drug dealing based on an informant’s tip and his evasive behavior.

Defendant was charged with possession with intent to deliver crack

cocaine, a drug tax stamp violation, and driving under suspension, but

not for a license plate violation.

      A district court judge, who presided at the suppression hearing,

initially ruled the license plate frame gave no reason to stop defendant

because the large plate numbers and letters were visible, but upheld the

traffic stop based on a reasonable suspicion of drug dealing. A different

judge who presided at trial upheld the stop based on the license plate

violation alone and excluded evidence of the informant and suspicious

behavior preceding the traffic stop. The jury found defendant guilty as

charged.    He appealed, and we transferred his appeal to the court of

appeals, which held the traffic stop was lawful based on reasonable

suspicion of drug dealing without deciding the license plate issue. That

court also affirmed the district court’s rejection of defendant’s claim the

State breached a plea agreement. We granted defendant’s application for

further review to decide whether a license plate violation justified this

traffic stop.

      For the reasons explained below, we hold a license plate frame that

covers up the county name violates Iowa Code section 321.37(3) and
                                     3

provides a valid basis for a traffic stop. We decline to reach the issue of

whether the traffic stop was otherwise lawful based on reasonable

suspicion of drug dealing and, therefore, vacate the court of appeals

decision on that issue. We affirm the court of appeals decision on the

plea agreement issue and affirm the district court judgment and

sentence.

      I. Background Facts and Proceedings.

      The evening of July 7, 2009, Davenport police officers Craig Burkle

and Jason Ellerbach were on patrol in an unmarked Crown Victoria

when they received a phone call from a confidential informant.         The

informant gave the officers an address and told them they would find “a

black male . . . slinging dope” in a red Jeep Cherokee with Iowa license

plate No. 994 RDB.    The officers drove to the address, found the Jeep

parked there unoccupied, and waited nearby for the driver to return. A

few minutes later, a black male got into the Jeep and drove away. The

officers followed the Jeep for approximately five blocks, until the driver

pulled over to the side of the road. The officers drove past without seeing

the driver get out of his vehicle.   The officers believed the driver had

pulled over to avoid their tail and to “prevent[] himself from making any

traffic violation mistakes” that would allow them to “initiate a traffic

stop.” The officers circled the block. When they returned to where the

driver had stopped, the Jeep was gone.

      Minutes later, the officers located the Jeep a few blocks away. The

officers followed the driver back to the address given by the informant,

where he parked.     The officers believed the driver “possibly was doing

drops, dropping off narcotics to other residences.” Shortly thereafter, the

driver left again in the Jeep. The officers followed for three miles and

then initiated a traffic stop because the Jeep’s license plate frame
                                     4

covered up the county name on the license plate, which the officers

believed violated Iowa Code section 321.37(3).      During the stop, the

officers identified the driver as Craig Harrison and placed him in the

back of their vehicle.     They soon discovered he possessed eighteen

prepackaged crack cocaine rocks.

      On August 11, the State charged Harrison with (1) possession with

intent to deliver a schedule II controlled substance, in violation of Iowa

Code sections 124.206(2)(d), 124.401(1)(c)(3), and 703.1; (2) failure to

affix a drug tax stamp, in violation of Iowa Code sections 453B.1(3)(d),

453B.3, 453B.7(4), 453B.12, and 703.1; and (3) driving while suspended,

in violation of Iowa Code sections 321.210A and 321.218. He was not

charged with a license plate violation under Iowa Code section 321.37(3).

On January 6, 2010, Harrison submitted a guilty plea pursuant to a plea

agreement with the State.       The State later withdrew from the plea

agreement after Harrison’s criminal record was discovered to be more

extensive than it had originally appeared. Harrison withdrew his guilty

plea and proceeded to trial.

      On June 7, Harrison filed a motion to suppress the evidence found

during the traffic stop.    A hearing on the motion was held June 9.

Officer Ellerbach and Officer Burkle testified regarding the events leading

up to the traffic stop. Officer Ellerbach acknowledged the county name

on a license plate is unnecessary for law enforcement to conduct a

license plate check.

      On June 14, the district court issued its ruling on Harrison’s

motion to suppress.        The court first concluded Iowa Code section

321.37(3) “refers to the large letters and large numbers on the Iowa

license plate, not the small letters at the bottom of the plate designating

the county.” The court noted Harrison was not charged with a license
                                            5

plate violation.      The court thus concluded “the alleged license plate

violation” was “pretextual” and “an invalid ground for initiating the stop

of the vehicle and search of Harrison.” 1                 The district court ruled,

however, the stop was justified by “sufficient objective facts to support an

investigatory stop of the vehicle and driver for suspicion of possessing

and selling illegal controlled substances.” The district court specifically

noted “the tip from an informant, fully corroborated by the officers’

observation, . . . the driver’s activity, and driver’s attempt to evade being

followed.” The district court denied Harrison’s motion to suppress.

       The jury trial began September 19, 2011.                     A different judge

presided over the trial, and this judge disagreed with the prior ruling on

the license plate issue.           The trial judge gave this explanation for

upholding the traffic stop based on the license plate violation:

       [I] looked at this file and my concern is that the motion to
       suppress was granted on one ground, and the Court at that
       time found that the other ground was pretextual for the
       traffic stop. I disagree with that. The traffic stop was done
       by the policemen because they could not see the entire
       writing on the license plate, and I looked at the statute and
       I’m having trial this morning, so I would find that the traffic
       stop was a valid traffic stop because the section 321.166(2)
       requires a license plate to have a county designation on it.
       The other statute, 321.37, states that a registration plate or
       a license plate has to permit full view of all numerals and
       letters printed on the registration plate. So I believe it was a
       valid traffic stop, which means that the confidential
       informant does not have to be mentioned whatsoever.

The trial court thus excluded any mention of the confidential informant

or Harrison’s behavior before the traffic stop. The jury ultimately found

Harrison guilty on all counts.



        1The parties did not raise on appeal the issue of whether a pretextual traffic stop

is valid. We therefore do not reach that issue.
                                    6

      Harrison appealed, and we transferred the case to the court of

appeals.   Harrison argued the district court erroneously denied his

motion to suppress because neither the alleged license plate violation nor

the surrounding circumstances created reasonable suspicion to justify a

traffic stop. He also challenged the district court’s ruling that allowed

the State to withdraw from the plea agreement.

      The court of appeals concluded the informant’s tip and Harrison’s

driving gave the officers reasonable suspicion to stop him. The court of

appeals did not consider whether the alleged violation of Iowa Code

section 321.37(3) provided an independent basis for the stop. The court

of appeals also rejected Harrison’s argument that the district court

should have enforced the plea agreement.          We granted Harrison’s

application for further review.

      II. Scope of Review.

      “On further review, we have the discretion to review all or some of

the issues raised on appeal . . . .” State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012). In this appeal, we exercise that discretion and confine our

review to whether the officers validly stopped Harrison for violating Iowa

Code section 321.37(3).     We decline to review the court of appeals

decision affirming the district court ruling that allowed the State to

withdraw from the plea agreement.       “Therefore, the court of appeals

decision on that issue stands.” Schaefer v. Putnam, 841 N.W.2d 68, 74

(Iowa 2013).

      The validity of the traffic stop based on the frame covering up the

county name on the license plate presents a question of statutory

interpretation that we review for correction of errors at law. See State v.

Romer, 832 N.W.2d 169, 174 (Iowa 2013).
                                      7

      III. Analysis.

      “When a peace officer observes a traffic offense, however minor, the

officer has probable cause to stop the driver of the vehicle.”      State v.

Mitchell, 498 N.W.2d 691, 693 (Iowa 1993). A traffic violation therefore

also establishes reasonable suspicion. See Alabama v. White, 496 U.S.

325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990)

(“Reasonable suspicion is a less demanding standard than probable

cause . . . .”). “The motivation of the officer stopping the vehicle is not

controlling in determining whether reasonable suspicion existed.         The

officer is therefore not bound by his real reasons for the stop.” State v.

Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (citation omitted). However, “a

mistake of law is not sufficient to justify a stop.”    State v. Tyler, 830

N.W.2d 288, 294–96 (Iowa 2013) (requiring suppression of evidence

obtained when officer pulled over driver based on mistaken belief license

plate cover was illegal). “[T]he possibility for racial profiling requires us

to carefully review the objective basis for asserted justifications behind

traffic stops.” Id. at 297 n.4.

      Iowa Code section 321.37(3) makes it unlawful “for the owner of a

vehicle to place any frame around or over the registration plate which

does not permit full view of all numerals and letters printed on the

registration plate.” We must determine if covering up the county name

on a license plate violates Iowa Code section 321.37(3).          This is a

question of first impression.     If Harrison did indeed violate Iowa Code

section 321.37(3), the officers had reasonable suspicion to pull him over

and the district court correctly denied his motion to suppress.

      Harrison argues the phrase “numerals and letters” in Iowa Code

section 321.37(3) is a term of art that refers only to the large numbers

and letters in the center of a license plate that are commonly referred to
                                     8

as the “registration plate number.”      See Iowa Code § 321.166(2).    The

first district court judge to rule on the question agreed. The trial judge

disagreed. Harrison relies on Iowa Code section 321.166(2), which states

in relevant part:

      Every registration plate or pair of plates shall display a
      registration plate number which shall consist of alphabetical
      or numerical characters or a combination thereof and the
      name of this state, which may be abbreviated. Every
      registration plate issued by the county treasurer shall
      display the name of the county, . . . except Pearl Harbor and
      purple heart registration plates issued prior to January 1,
      1997, and collegiate, fire fighter, and medal of honor
      registration plates.

Id. (emphasis added). Harrison notes this section separately mentions

(1) the “registration plate number,” which consists of “alphabetical or

numerical characters”; (2) “the name of this state”; and (3) “the name of

the county.”        He believes section 321.166(2) makes it clear that

“alphabetical or numerical characters” is synonymous with “registration

plate number,” both of which are distinct from the county name.          He

then argues the phrases “alphabetical or numerical characters” in

section 321.166(2) and “numerals and letters” in section 321.37(3) are

interchangeable—both are terms of art referring only to the registration

plate number. See, e.g., id. § 321.34 (referring to license plate number

for various specialized license plates as “letter-number” designation); id.

§ 321.34(12)(c) (noting personalized license plates “shall be limited to no

more than five initials, letters, or combinations of numerals and letters”).

      Harrison argues that when the legislature intends to refer broadly

to all of the information on a license plate, it uses different terminology

than “numerals and letters.”      Namely, Iowa Code section 321.166(5)

requires that “[t]here shall be a marked contrast between the color of the

registration plates and the data which is required to be displayed on the
                                     9

registration plates.” (Emphasis added.) He asserts that if the legislature

intended section 321.37(3) to prohibit drivers from covering up the

county name on a license plate, it would have written the statute to say:

“It is unlawful for the owner of a vehicle to place any frame around or

over the registration plate which does not permit full view of the data

which is required to be displayed on the registration plates.”

      Harrison further argues Iowa Code sections 321.166(2) and

321.166(4) indicate the legislature does not view the county name as an

important piece of information. Iowa Code section 321.166(2) exempts

certain types of license plates from displaying the county name: “Pearl

Harbor and purple heart registration plates issued prior to January 1,

1997, and collegiate, fire fighter, and medal of honor registration plates.”

Iowa Code section 321.166(4) requires only “the registration plate

number” to “be of sufficient size to be readable from a distance of one

hundred feet during daylight.”     Harrison bolsters this argument with

Officer Ellerbach’s testimony that officers use the registration plate

number to run a license plate check and do not use the county name to

retrieve information from the license plate database.            For all those

reasons, Harrison urges us to conclude a license plate frame covering up

the county name does not violate Iowa Code section 321.37(3).

      The State counters that the language of Iowa Code section

321.37(3) is clear and unambiguous: it requires “full view of all numerals

and letters printed on the registration plate,” and the county name on

the plate is indisputably made up of letters.      (Emphasis added.)      The

State asserts that if the legislature intended to limit the full-view

requirement in section 321.37(3) to the “registration plate number,” it

would have used that phrase instead of “all numerals and letters printed

on the registration plate.”     The State points to Iowa Code section
                                      10

321.166(2) as evidence of the legislature’s ability to refer specifically to

the “registration plate number.”

       In response to Harrison’s argument that the county name is not an

important piece of information, the State emphasizes that Iowa Code

section 321.166(2) requires every license plate, except those exempted by

statute, to display the county name. The State asserts this demonstrates

“the county name is an integral element of the registration plate.” The

State points out that, although the county name is not necessary for a

license plate check, it nonetheless helps police and citizens identify

vehicles. While a person who sees a driver commit a crime may not be

able to remember a complete license plate number, the person may be

more easily able to recall the county name.        This would narrow the

search to identify the vehicle. The county name on a plate also shows

whether a vehicle is registered locally or not, which may be relevant in

identifying suspicious behavior.

       The State alternatively asserts Harrison violated Iowa Code section

321.38 by covering up the county name on his license plate. Iowa Code

section 321.38 requires license plates “to be clearly visible and . . .

maintained free from foreign materials and in a condition to be clearly

legible.”     The State emphasizes that this requirement is not limited to

only the license plate number. The State argues Harrison’s license plate

frame was “foreign material” that prevented his license plate from being

“clearly legible.”

       We have not previously interpreted section 321.37(3).         “When

interpreting a statute, ‘our primary goal is to give effect to the intent of

the legislature.     That intent is evidenced by the words used in the

statute.’ ”    State v. Walker, 804 N.W.2d 284, 290 (Iowa 2011) (quoting

Anderson v. State, 801 N.W.2d 1, 3 (Iowa 2011)). “In determining what
                                    11

the legislature intended . . . , we are constrained to follow the express

terms of the statute.” State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990).

“When more than one statute is relevant, we consider the statutes

together and try to harmonize them.” State v. Snyder, 634 N.W.2d 613,

615–16 (Iowa 2001) (construing interrelated provisions of Iowa Code

chapter 321 to define “motor vehicle”). “Statutory words are presumed to

be used in their ordinary and usual sense and with the meaning

commonly attributable to them.” State v. Royer, 632 N.W.2d 905, 908

(Iowa 2001). “Generally understood words of ordinary usage need not be

defined; however, technical terms or legal terms of art must be

explained.” State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996).

      We conclude the plain language of Iowa Code section 321.37(3),

read together with section 321.166(2), dictates the outcome of this

appeal. Iowa Code section 321.166(2) requires a license plate such as

Harrison’s to “display the name of the county.” Section 321.37(3) in turn

provides:

      It is unlawful for the owner of a vehicle to place any frame
      around or over the registration plate which does not permit
      full view of all numerals and letters printed on the
      registration plate.

Iowa Code § 321.37(3) (emphasis added).       The language “all numerals

and letters” unambiguously requires drivers to display all information

printed on the license plate, including the county name. See Hinojosa v.

State, 319 S.W.3d 258, 262 (Ark. 2009) (finding probable cause based on

violation of statute that prohibits “obscuring the license ‘plate’ ” and

noting “[n]othing in the language of the statute restricts its applicability

to the registration numbers alone”); Nelson v. State, 544 S.E.2d 189, 190

(Ga. Ct. App. 2001) (denying motion to suppress when a defendant’s

license plate cover obscured name of state on license plate tag, noting
                                      12

“the statute does not specify that only certain portions of the tag must

not be obscured”). But see State v. St. Jean, 697 So. 2d 956, 957 (Fla.

Dist. Ct. App. 1997) (finding county name was not an “identification

mark” and, therefore, did not have to be visible on license plate); State v.

Stearns, 101 P.3d 811, 815–16 (Or. Ct. App. 2004) (interpreting

ambiguous statute in light of legislative intent and concluding statute did

not prohibit obscuring the word “Oregon”).

      We reject Harrison’s interpretation that section 321.37(3) only

prohibits covering up the registration plate number.        If the legislature

had intended this full-view requirement to apply only to the characters of

the registration plate number, it would have used that term in section

321.37(3). Instead, the legislature used broader language: “all numerals

and letters printed on the registration plate.” See Iowa Code § 321.37(3).

We give that phrase its generally understood meaning.

      Harrison’s     interpretation    would     undermine      the    display

requirements for Iowa license plates.          Section 321.166(2) expressly

required Harrison’s license plate to display the name of the county. See

Iowa Code § 321.166(2). Why permit motorists to cover up information

on license plates they are required to display? Furthermore, Iowa Code

sections 321.38 and 321.388 demonstrate that the legislature intended

that all information to be displayed on a license plate must remain

readable. Iowa Code section 321.38 requires “[e]very registration plate”

“to be clearly visible and . . . maintained free from foreign materials and

in a condition to be clearly legible.” Iowa Code section 321.388 requires

the illumination of “the rear registration plate [to] render it clearly legible

from a distance of fifty feet.” Taken together, these statutes reinforce our

conclusion that covering up the county name on a license plate violates

Iowa Code section 321.37(3). See State v. Hayes, 660 P.2d 1387, 1389
                                         13

(Kan. Ct. App. 1983) (construing equivalent statutory language to require

state name on license plate to be legible). Our interpretation harmonizes

section 321.37(3) with these related statutory provisions governing the

visibility and legibility of information to be displayed on license plates.

       Our interpretation of section 321.37(3) also furthers the purpose of

the statute.    See Walker, 804 N.W.2d at 290 (“ ‘We seek a reasonable

interpretation which will best effectuate the purpose of the statute . . . .’ ”

(quoting State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995))).                     An

important purpose of Iowa Code section 321.37(3), along with related

sections, is to allow police and citizens to identify vehicles. See State v.

Johnson, 219 S.W.3d 386, 389 (Tex. Crim. App. 2007) (Johnson, J.,

concurring)     (noting   “license    plates    frequently    contribute     to   the

investigation and resolution of crime”).          “License plates are primarily

functional items, and it is not unreasonable to prohibit decorative items

or accessories that affect that functionality even to a small degree.” Id. at

388 (majority opinion).       Although the county name is unnecessary to

conduct a license plate check, it can be useful to help law enforcement

track down a vehicle driven by someone who has been observed breaking

the law.     Citizens unable to remember a complete registration plate

number may be able to help identify a particular vehicle by providing the

county name with a partial number. 2

       The trial judge correctly ruled that Iowa Code section 321.37(3) is

violated when the license plate frame covers up the county name.

Harrison’s violation of section 321.37(7) justified the traffic stop.             The

       2We   recognize that certain specialty plates, such as those for medal of honor
winners, firefighters, and collegiate plates, need not display a county name. See Iowa
Code §§ 321.34, .166(2). Those plates, however, would be easier for a citizen to
remember than a random combination of letters and numbers without the county name
displayed.
                                    14

district court therefore correctly denied his motion to suppress. Because

we uphold the stop on the basis of his license plate violation, we need not

decide and do not reach the issue of whether the stop was independently

justified on grounds of reasonable suspicion of drug dealing.

      IV. Disposition.

      For the foregoing reasons, we affirm the court of appeals opinion

on the plea agreement issue, vacate its decision on the reasonable

suspicion issue, and affirm the district court judgment and sentence.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE

AFFIRMED.

      All justices concur except Appel and Hecht, JJ., who dissent.
                                      15

                                                #12–0139, State v. Harrison

APPEL, Justice (dissenting).

      In my view, the term “all numerals and letters” in Iowa Code

section 321.37(3) means “all numerals and letters,” not “all numerals,

letters, and the name of the county.”          I reach this conclusion by

examining Iowa Code section 321.166(2) (2009), which provides:

      Every registration plate or pair of plates shall display a
      registration plate number which shall consist of alphabetical
      or numerical characters or a combination thereof and the
      name of this state, which may be abbreviated.          Every
      registration plate issued by the county treasurer shall
      display the name of the county . . . .

(Emphasis added.)

      This     provision   distinguishes   between   the   registration   plate

number, which contains alphabetical or numerical characters, and the

name of the county.        Reading the statutes in pari materia, I would

conclude “all numerals and letters” in section 321.37(3) refers to the

registration plate number, not the name of the county. Notwithstanding

my conclusion, I recognize there is a plausible contrary interpretation,

based in part on policy, which is presented in the majority opinion.

      There is, however, a countervailing policy and a larger story in this

case that should not be overlooked. Davenport police had received a tip

from a confidential informant, but the tip contained only conclusory

information.     Unlike a tip from a citizen informant, a tip from a

confidential informant is not entitled to a presumption of reliability. See

State v. Randle, 555 N.W.2d 666, 669 (Iowa 1996) (“Because the

confidential informant was not a citizen informant, the informant was

not entitled to a presumption of reliability.”); State v. Drake, 224 N.W.2d

476, 478–79 (Iowa 1974) (noting the rule requiring the state to prove the
                                     16

informant’s “prior reliability is considerably relaxed” in the case of a

citizen informant).

      At the suppression hearing, the State offered no evidence of the

informant’s reliability.     Instead, the State attempted to rely on

corroboration   at    the   scene,   which   consisted   almost   solely   of

corroboration of innocent facts like the make, model, and license plate

number.    Mere corroboration of innocent facts does not establish the

basis for a Terry-type traffic stop. Florida v. J.L., 529 U.S. 266, 272, 120

S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000) (holding that to

establish reasonable suspicion, the tip must “be reliable in its assertion

of illegality, not just in its tendency to identify a determinate person”);

United States v. Roch, 5 F.3d 894, 897–98 (5th Cir. 1993) (finding tip

from known confidential informant who had previously given reliable

information did not provide reasonable suspicion for an investigatory

stop because the tip failed to provide “significant details” or “a prediction

of future behavior” and police did not observe any suspicious behavior in

their surveillance of the defendant).

      The only allegedly suspicious activity is that the suspect’s car

pulled over to the side of the road for a few minutes after having been

followed from “a far distance,” or at a distance of “a block or two,” by an

unmarked police car. I am not sure a car pulling over gives rise to a

hunch, let alone the reasonable suspicion traditionally required to

execute a traffic stop under either the Fourth Amendment of the United

States Constitution or article I, section 8 of the Iowa Constitution. See,

e.g., People v. Revoal, 269 P.3d 1238, 1241 (Colo. 2012) (no reasonable

suspicion when defendant looked left, looked right, and walked away

when he noticed a police vehicle); State v. McCleery, 560 N.W.2d 789,

793 (Neb. 1997) (holding approaching motorist who turns around and
                                    17

drives away rather than pass through a checkpoint does not trigger

reasonable suspicion for a stop); State v. Nicholson, 188 S.W.3d 649, 661

(Tenn. 2006) (flight, without more, does not establish reasonable

suspicion); State v. Gatewood, 182 P.3d 426, 428 (Wash. 2008) (walking

away from police does not give rise to reasonable suspicion).

      The officers seem to have realized they did not have a basis for the

traffic stop based upon the unreliable and uncorroborated confidential

informant’s tip and the mere pulling over of a vehicle along the side of

the road. So, instead, they defended the stop by asserting the license

plate frame covered the name of the county on the bottom of the plate.

      This stop raises the question of pretext.     The officers were not

engaged in their stakeout to look for license plate violations, nor did they

activate their emergency lights and drive through intersections to catch

up with Harrison merely to stem the rising tide of license plate

infractions. The officers’ obvious goal was not to take care of the license

plate, but rather to investigate an alleged crime for which they had no

basis to initiate a stop.

      There is a question as to whether a pretextual basis for a stop or

search is constitutionally sufficient. The United States Supreme Court in

Whren v. United States, 517 U.S. 806, 812–16, 116 S. Ct. 1769, 1774–76,

135 L. Ed. 2d 89, 97–100 (1996), answered this question in the

affirmative under the Fourth Amendment, and we are bound by that

interpretation for purposes of the United States Constitution. Following

the Supreme Court’s lead, one court allowed a stop based on the

obstruction caused by hanging air fresheners and fuzzy dice.            See

Commonwealth v. Shabazz, 18 A.3d 1217, 1222 (Pa. Super. Ct. 2011).

      At least two state appellate courts, however, have rejected Whren

in the context of traffic stops in interpreting their state constitutions.
                                   18

The most recent case is State v. Ochoa, 206 P.3d 143 (N.M. Ct. App.

2008). In this case, the New Mexico appellate court considered whether

a stop for a seat belt violation of a suspect being investigated for drug

activity violated the search and seizure clause of the New Mexico

Constitution. Id. at 146–47. The New Mexico court canvassed numerous

authorities, noting, in particular, the ease with which law enforcement

may stop automobiles on the road in light of the pervasiveness of minor

traffic violations. Id. at 148–50. The New Mexico court emphasized that

under the New Mexico Constitution, there is no reduced expectation of

privacy in an automobile.   Id. at 151.   The New Mexico court further

stated:

      In performing a pretextual traffic stop, a police officer is
      stopping the driver, “not to enforce the traffic code, but to
      conduct a criminal investigation unrelated to the driving.
      Therefore the reasonable articulable suspicion that a traffic
      infraction has occurred which justifies an exception to the
      warrant requirement for an ordinary traffic stop does not
      justify a stop for criminal investigation.”

Id. at 149 (quoting State v. Ladson, 979 P.2d 833, 837–38 (Wash. 1999)).

      The New Mexico court relied on a case from the Washington

Supreme Court, which reached a similar conclusion.        See id. (citing
Ladson, 979 P.2d at 837–38); see also State v. Heath, 929 A.2d 390, 402

(Del. Super. Ct. 2006) (concluding that stops “demonstrated to have been

made exclusively for the purpose of investigating an officer’s hunch

about some other offense” violate the Delaware Constitution).         See

generally Michael Sievers, Note, State v. Ochoa: The End of Pretextual

Stops in New Mexico?, 42 N.M. L. Rev. 595 (2012) (discussing the New

Mexico court’s decision in Ochoa and concluding the court was right to

depart from United States Supreme Court precedent).
                                       19

      While we have recognized police may stop a vehicle when there is

reason to believe there is an ongoing civil infraction, State v. Pals, 805

N.W.2d 767, 774 (Iowa 2011), we have never directly considered the

validity of a traffic stop where the basis of the stop was alleged to be

pretextual.   This issue of whether Whren is good law under the Iowa

Constitution when a traffic stop is based on pretext, however, was not

raised by Harrison and we do not address it today.

      Much has been written about unbridled discretion to stop vehicles

on the open road. In particular, commentary has been concerned that

without some constitutional restraints, African-Americans and other

minority groups may be subject to stops for “driving while black.” David

A. Harris, “Driving While Black” and All Other Traffic Offenses: The

Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology

544, 550–53 (1997); see also David A. Harris, Car Wars: The Fourth

Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556, 582–84

(1998) (concluding evidence supports a finding that police stop minorities

“in numbers greatly disproportionate to their presence in the driving

population”   even   though   “there    is   no   race- or   ethnicity-neutral

explanation for it”); Lewis R. Katz, “Lonesome Road”: Driving Without the
Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1421–33 (2013) (noting

that Whren “solidified a trend in United States jurisprudence toward

ignoring police officers’ racial biases, admitted or otherwise” and

concluding the only workable solution to pretextual traffic stops is

through a reconsideration of Whren); Wayne R. LaFave, The Routine

Traffic Stop from Start to Finish: Too Much “Routine,” Not Enough Fourth

Amendment, 102 Mich. L. Rev. 1843, 1860–61 (2004) (discussing the

difficulties of an equal protection challenge to selective enforcement of

traffic laws). While I recognize the need to allow law enforcement to do
                                    20

its job, article I, section 8 of the Iowa Constitution requires us to ensure

individuals are protected from unwarranted seizures on the open road.

      We recently began to closely examine traffic stops to prevent

expanded and unwarranted searches and seizures.          See, e.g., State v.

Tyler, 830 N.W.2d 288, 297–98 (Iowa 2013) (concluding there was

neither probable cause nor reasonable suspicion to stop a vehicle for a

license plate violation and that the officer may have specifically targeted

the vehicle for some other unknown reason); Pals, 805 N.W.2d at 782–84

(holding consent to search a vehicle was invalid where the suspect had

been subject to a pat-down search, detained in the police vehicle, and

was not advised that he was free to leave, that he could refuse consent,

or that all business related to the initial stop was complete). Other state

supreme courts have utilized their state constitutions to prevent

arbitrary police conduct on the open road in a variety of contexts. See,

e.g., Sitz v. Dep’t of State Police, 506 N.W.2d 209, 210 (Mich. 1993)

(declining to follow under state constitution on remand the United States

Supreme Court’s decision in Michigan Department of State Police v. Sitz,

496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)); State v.

Askerooth, 681 N.W.2d 353, 361–63 (Minn. 2004) (rejecting United States

Supreme Court decision in Atwater v. City of Lago Vista, 532 U.S. 318,

121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), which permitted custodial

arrest for seat belt violation); Ascher v. Comm’r of Pub. Safety, 519

N.W.2d 183, 187 (Minn. 1994) (declining to follow the United Sates

Supreme Court’s decision in Sitz, in case involving temporary road

block); State v. Sterndale, 656 A.2d 409, 411 (N.H. 1995) (rejecting

“automobile exception” to warrant requirement and declining to follow

United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572

(1982)); State v. Carty, 790 A.2d 903, 912 (N.J. 2002) (consent to search
                                       21

a vehicle must be based on reasonable suspicion of criminal wrongdoing

beyond initial valid motor vehicle stop, departing from Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), in

context of traffic stop). These state supreme courts refuse to simply color

match cases under their state constitutions with federal precedent and,

instead, engage in independent analysis of the state constitutional issues

presented.

      In the meantime, the take-away point for Iowa citizens is that they

better go out to the garage and check their license plate frames if they

want to avoid being pulled over by law enforcement on the open road.

For the thousands of Iowans who have a frame that promotes a sports

team, or an auto dealer, or have a nice (or not so nice) slogan, beware! If

the license plate frame happens to obscure the county name on the

plate, the State will take the position that police may stop the vehicle

anywhere and at any time, whether one is dropping the kids off at

school, returning home from the football game, or on the way to work,

without any further sign of criminal wrongdoing.      The State will likely

take the position that the decision to stop a vehicle will rest in the

unreviewable discretion of the police regardless of pretext. Sounds a bit

like a general warrant, doesn’t it? See State v. Ochoa, 792 N.W.2d 260,

269–73 (Iowa 2010) (discussing the desire of the framers of the Fourth

Amendment to reject the general warrants authorized by the British

Crown).

      Hecht, J., joins this dissent.
